Could Louisiana's Public Service Commission exempt newspaper subscription calls from the Do Not Call program?

Plain-English summary

A state representative asked whether the Louisiana Public Service Commission could add a newspaper exception to the Telephone Solicitation Relief Act's Do Not Call rules. In the official opinion, the AG said the Commission had exceeded its rulemaking authority. The statute exempted calls constituting political activity, but the Commission's order also exempted calls by newspapers and periodicals qualified to serve as official journals. The AG said that wording would reach ordinary newspaper subscription sales.

The opinion explained that the legislature had listed six exceptions to telephonic solicitation and had rejected proposed newspaper exceptions on two occasions. The AG distinguished the Commission's constitutional authority to regulate utilities from its authority to administer a program created by statute. For the Do Not Call program, the Commission could make administrative rules within the law but could not add a new substantive exemption contrary to the legislature's decision.

The opinion also raised a separate procedural question about whether the Commission should have used the Administrative Procedures Act process. It said the Commission may have circumvented that Act's requirements; it did not state a definite procedural holding.

Currency note

This opinion was issued in 2002. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Did the Act's political-activity exception cover newspaper subscription calls?
The AG said no. The Commission's newspaper rule would have exempted subscription solicitation, which the legislature had not included among the statute's exceptions.

Could the Public Service Commission add its own exception while administering the Do Not Call list?
The opinion said the Commission's statutory rulemaking role did not let it make new law by expanding the political-activity exception.

Did the AG decide that the Commission violated rulemaking procedure?
The opinion said only that the Commission may have bypassed Administrative Procedures Act requirements. Its definite conclusion concerned the unauthorized substantive exception.

Background and statutory framework

The Telephone Solicitation Relief Act of 2001 directed the Commission to maintain a Do Not Call list and issue implementing rules. LSA-R.S. 45:844.12(4) listed exceptions to telephonic solicitation, including political activity; LSA-R.S. 45:844.13C directed the Commission to issue program rules. The opinion applied the constitutional division between legislative power and the Commission's delegated rulemaking role, then discussed LSA-R.S. 49:950 et seq. as a possible procedural limit.

Citations and references

• LSA-R.S. 45:844.12(4) (statutory solicitation exceptions)
• LSA-R.S. 45:844.13C (Commission rulemaking direction)
• La. Const. Art. 4, sec. 21(B) (Commission authority discussed)
• LSA-R.S. 49:950 et seq. (Administrative Procedures Act)

Source

• Landing page: https://www.ag.state.la.us/Opinions
• Original PDF: https://www.ag.state.la.us/Opinion/Download/02-0006

Original opinion text

DEPARTMENT OF IUSIICt.
PUBLIC PROIEC~ ION DIVISION

70825
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OPINION 02-0006

The Honorable Kay lies
OPINION 02-0006
61-C
LEGISLATION - Special Legislation
State Representative, District 31 LSA-R S 45 844.11 etseq
402 Mahlon St.
We conclude that the expansion of the defimt~on of political
activity to ~nclude telephomc sohc~tat~ons by newspapers ~s
DeRidder, Louisiana 70634
a usurpation of a legislative function The Commission
exceeded ~t authority by making new law contrary to the express w~ll of the legislature
Dear Representative lies:

You have asked for a determination as to whether the Louisiana Public Service Commission (Commission) has the authority to adopt an order expanding the telemarketing exceptions of the "Telephone Solicitation Relief Act of 2001" (Acts 2001, No. 40). Specifically, the Commission has adopted a rule that adds calls made by any newspaper or periodical, qualified to be the official journal of the State, or any parish municipality, school board, or other political subdivision, to the list of exceptions set forth in LSA-R.S. 45:844.12(4).

The Telephone Solicitation Relief Act of 2001 (the Act), commonly referred to as the "Do Not Call’ program, was adopted to protect the privacy of (telephonic) subscribers who wish to avoid unsolicited and unwanted telephonic solicitations.
(LSA-R.S. 45:844.11 et seq.) The Act provides that the Commission must compile a database of telephone subscribers who wish to have their names included on a "Do Not Call" list and make that list available to telephonic solicitors. The Act defines a telephonic solicitation but lists several precise exceptions to the definition. LSA-R.S. 45:844.12 (4) reads, in part:

(4) "Telephonic solicitation" means any voice or data communication made ... but does not include voice or data communications made for any of the following reasons:

(a) In response to an express request of the person called.
(b) Primarily in connection with an existing debt or contract payment ...
(c) To any person with whom the telephone solicitor has an existing relationship...

Page 2

(d) On behalf of an organization which has a nonprofit status under Section 501(c)(3) or (6) of the Internal Revenue Code
(e) For the purpose of conducting marketing research, public opinion polling
(f) Constituting political activity.

The legislature directed the Commission to promulgate rules that would accomplish certain specifics by January 1, 2002 (LSA-R.S. 45:844.13C). The Commission was required to:

(1) notify residential telephonic subscribers of the opportunity to participate in the do not call program;
(2) specify the method by which consumers would notify the Commission of their wishes;
(3) specify the length of time subscribers wished to participate and the effect of a change of telephone number;
(4) specify the methods by which objections and revocations would be collected;
(5) specify how solicitors could access the "Do Not Call" database;

In response to the legislative directive, the Commission published a Notice of rulemaking in their August 3, 2001 Official Bulletin. After receiving comments and considering regulation drafts, the Commission scheduled a vote on the proposed rules for the November 7th meeting. At that meeting, the Commission unanimously adopted an order accepting the draft rules governing the "Do Not Call" program. As adopted by the Commission, the rule excepting political activity from the definition of "telephonic solicitation" now reads:

6. Constituting political activity. For the purposes of this Order, calls
   constituting political activity are defined as:

   (a) calls made for the sole purpose of urging support for or
   opposition to a political candidate or ballot issue; or calls made
   for the sole purpose of conducting political polls or soliciting the
   expression of opinions, ideas or voices; and,
   (b) calls made by any newspaper or periodical, qualified to be
   the official journal of the State or any parish, municipality,
   school board or other political subdivision as set forth in
   R.S. 43:140 et seq.

Clearly, the Commission’s rule would except any newspaper solicitation, even those made to sell newspaper subscriptions, from the "Do Not Call’ program.

Page 3

The Louisiana Constitution, Article Ill, Section I (A) provides that the legislative power of the state is vested in the legislature. The Louisiana Civil Code, Article 2 further provides that legislation is a solemn expression of legislative will. In adopting the Telephone Solicitation Relief Act the legislature undoubtedly intended to limit the exemptions to the six that are listed in LSA-R.S. 45:844.12(4). On at least two occasions the legislature considered, and rejected, proposed amendments that would have added newspapers to the list of exceptions. On April 4, 2001, Representative Gillis Pinac proposed House Floor Amendment B-9 to HB 175, which would have added the exemption to the definition of telephonic seller for persons primarily soficiting the sale of newspaper of general circulation. The full house rejected that amendment by a vote of 81 to 12. On May 3, 2001, Senator CIo Fontenot offered the identical amendment on the Senate Floor where it was rejected by a vote of 23 to 12. The legislature unmistakably expressed their intention that telemarketing calls by newspapers would not be excepted from the definition of "telephonic solicitation" in the Act.

The powers of the Louisiana Public Service Commission are found in LSA-Const. Art 4, Section 21(B). It reads:

The commission shall regulate all common carriers and public utilities and have such other regulatory authority as provided by law. It shall adopt and enforce reasonable rules, regulations, and procedures necessary for the discharge of its duties as provided by law.

The Louisiana Supreme Court has addressed the rule-making authority of the Commission on more than one occasion. Two cases are particularly relevant to the issue at hand: Louisiana Consumers’ League, Inc. v Louisiana Pubfic Service Commission 351 So.2d 128 (1977) and Hayden v. Louisiana Public Service Commission 553 So.2d 435 (1989).

In Louisiana Consumers’ League, Inc. v Louisiana Public Service Commission, the Louisiana Supreme Court was asked to review a Commission rule affecting the right of an organization to intervene in an electric power rate increase. The Louisiana Consumers’ League challenged a Commission rule prohibiting intervention claiming that the Commission had not followed the Administrative Procedures Act when promulgating the rule. The Court held:

This constitutional grant of rule-making power to the Commission precludes the legislature from enacting statutes that would restrict the Commission’s ability to adopt its own rules, regulations, and procedures. Accordingly, the rule making, provisions of the Administrative Procedures Act are not applicable to the Commission. (Louisiana Consumer’s League, Inc. at 130)

Page 4

In 1989 The Louisiana Supreme Court revisited the issue of the Commission’s rule-making authority in Hayden v. Louisiana Public Service Commission. This case involved the authority of the Commission to issue rules regulating pilotage fees. The Court distinguished the Commission’s authority to promulgate rules in accordance with its "constitutionally mandated duty to regulate public utilities" and its authority to promulgate rules pursuant to a legislative grant of authority. In the Hayden ruling the Court quoted their finding in Giallanza v. Louisiana Public Service Commission, 412 So.2d 1369 (La. 1982):

We find Consumer’s League is clearly distinguishable from the present case. Consumer’s League dealt with the LPSC’s powers in the context of its constitutionally mandated duty to regulate public utilities. By contrast, the LPSC’s authority to regulate pilotage fees is not found in the constitution, but is "other regulatory authority" given to the LPSC by the legislature.

The Court went on to say that, "Under the scheme of La. Const. Art. 4, sec. 21(B), the legislature is allowed to contour this regulatory authority "as provided by law".

Citing Richland Gas Co. v. Hale, 169 La. 300, 125 So. 130 (1929), the Hayden Court went on to say: "Even in the context of public utilities and common carriers, this court has never interpreted the LPSC’s control over its rules regulations and procedures as unbridled".

The same can be said for the Commission’s authority to promulgate the rules required by the Telephone Solicitation Relief Act. The Commission’s power to regulate telemarketers is not constitutionally created, but legislatively mandated. The legislature spelled out the specific rulemaking duties of the Commission, the broadest of which was to promulgate rules for the administration of the "Do Not Call" program. In this case the Commission went far beyond their authority and made a substantive change in the law. Under the Act, the Commission’s rulemaking authority is a "duty provided by law" and it does not include the authority to make new law by expanding the definition of "political activity".

Not directly addressed by the Court in Hayden, is whether the Commission is subject to the Administrative Procedures Act (LSA-R.S. 49:950 et seq.) when rule-making pursuant to a grant of legislative authority. The Administrative Procedures Act (APA) exempts the Public Service Commission from only two provisions, LSA-R.S. 49:968F and LSA-R.S. 49:970, implying that the remaining provisions are applicable to the Commission. LSA-R.S. 49:968F instructs the legislature on how to proceed should they determine that a rule or fee is unacceptable and LSA-R.S. 49:970 provides for the Governor’s veto of a rule. This raises the question as to whether the Commission properly used their power to issue a Commission Order or whether they should have promulgated rules in accordance with the APA thereby allowing for legislative oversight.

Page 5

It is the opinion of the Attorney General that the expansion of the definition of political activity to include telephonic solicitations by newspapers is a usurpation of a legislative function. The Commission not only exceeded its authority by making new law but did so contrary to the express will of the legislature. It also appears that the Commission may have circumvented the requirements of the Administrative Procedures Act when promulgating the "Do Not Call" rules.

Very truly your,

RICHARD P. IEYOUB
ATTORNEY GENERAL

BY: (~-"~~..-.~"/~.-’~..~
ISABEL WINGERTER ~’S-)
ASSISTANT ATTORNEY GENERAL