Yes, I know, Shakespeare was English (which is about all I remember about him from the CliffsNotes I relied upon in high school), and Louisiana has French origins. But it’s Friday afternoon and I’m tired. This is about as creative as it gets right now.
Today, the Louisiana Public Service Commission (PSC) declared a state of emergency and announced, pursuant to its Do Not Call Program General Order, in no unclear terms, that “NO telephonic solicitor shall engage in ANY form of telephonic solicitation” is permitted during the state of emergency (at least while the Office of Homeland Security and Emergency Preparedness requires the PSC to report to the Emergency Operations Center). The PSC is not kidding around about this, as the emphasis in the announcement is its own. The state of emergency extends from August 26 through September 27, 2021, unless it is terminated sooner.
I have received a number of calls and emails from clients over the past few hours about what the PSC’s announcement actually means: are calls with the consumer’s prior express written consent permitted? What about calls pursuant to an established business relationship? And how about debt collection calls to Louisiana residents—are those allowed to be placed? The answer is no, no, and still no. Here’s why.
The Do Not Call Program General Order defines calls with prior express written consent, calls pursuant to an established business relationship, and collection calls, among others, as “telephonic solicitations.” They are just generally exempted and permissible during normal times. See DNC Program Gen. Order § II(I)(1)-(3) (“‘Telephonic solicitation’ means the initiation of a telephone call or message . . . to a residential telephonic subscriber for the purpose of encouraging a sale [of] . . . consumer goods, or services[.] . . . Although considered telephonic solicitation, exceptions are granted to voice . . . communications for the following reasons . . .”) (emphasis added). The state of emergency provision of the Order states, in relevant part, “[d]uring a state of emergency as declared by the governor . . . no telephonic solicitor shall engage in any form of telephonic solicitation.” Id. at sec. V(A)(3) (emphasis added). In other words, no “telephonic solicitation” calls, including calls with prior express written consent or pursuant to an established business relationship, or collection calls (along with five other categories of calls) may be placed during a declared state of emergency, hard stop. This is reinforced by the immediately following subsection in the Order, which allows for telephonic solicitations “based on exceptions granted in subsections 1 through 8 of Section II”—i.e., the various exceptions to the “telephonic solicitation” definition—to begin again once the emergency status has been downgraded to less severe. There would be no reason to expressly allow such calls to begin again when the emergency is downgraded if they were permitted in the first place.
Last year, I spoke with Louisiana’s Do Not Call Program Manager, who made clear that this rule is intended to keep phone lines open to first responders and for emergency calls during states of emergency. That’s why there are no exceptions during a state of emergency. And that makes perfect sense.