The status of the Louisiana Public Service Commission’s (“Commission”) potential enforcement of the available emergency measures pursuant to the Do Not Call General Order (Docket No. R_29617, decided Oct. 11, 2006) (“DNC Order”) has been unclear. While these emergency measures generally have been imposed during prior emergencies, they presently remain unimplemented despite Governor John Bel Edwards’ initial Public Health Emergency Declaration and subsequent State of Emergency Declaration extending coronavirus (“COVID-19”) emergency measures.
According to the DNC Program Manager, the emergency moratorium is not being enforced due (at least in part) to the absence of a directive from the Governor’s Office of Homeland Security and Emergency Preparedness (“GHOSEP”). Since the “[Commission] has not been required to report to GHOSEP in response to any executive order or proclamation issued as a result of any recent event, no additional telephonic solicitation prohibitions are necessary at this time.”
The Louisiana “Do Not Call” Program and the Do Not Call General Order
The DNC Order was promulgated to develop the rules and regulations necessary to implement the Louisiana “Do Not Call” program established pursuant to La. R.S. 45:844.11, et seq., which prohibits telephonic solicitors from engaging in telephonic solicitation “during a state of emergency as declared by the governor” – subject to certain exceptions, which include, but are not limited to, telemarketing calls made in connection with an outstanding debt or contract, in response to an express request of the person called, and to any person with whom the telephonic solicitor has had an existing business relationship that lapsed within the last six months. La. R.S. § 45:844.31.
However, the DNC Order restrictions triggering the outright moratorium on all telephonic solicitation – including the foregoing exceptions – will not become effective until the Commission has a “mandatory EOC presence” based on a reporting directive from GOHSEP. As of May 4, the Commission has “No Mandatory EOC Presence.”
Non-Enforcement of the DNC Emergency Moratorium and Potential Impact of Existing Executive Orders
The DNC Order provides that “[d]uring a state of emergency as declared by the governor, while GHOSEP requires the Commission to report to the Emergency Operations Center (“EOC”), no telephonic solicitor shall engage in any form of telephonic solicitation.” DNC Order at V.A.3. (emphasis added). While more than a little unclear, the DNC Order ostensibly requires two ongoing prerequisites to trigger the emergency solicitation moratorium: (1) a state of emergency declared by the governor and (2) a requirement “to report to the EOC” or “Mandatory EOC Presence.”
The position of the DNC Program Manager is that the latter requirement remains unfulfilled and, as such, the obligation to implement the calling moratorium does not presently exist. The foregoing interpretation seems to track based on the language of the DNC Order; however, the extent to which existing Louisiana gubernatorial orders may already fulfill this requirement remains unclear.
On August 9, 2019, Governor Edwards issued Executive Order JBE 19-12 (“Executive Order”) establishing the existing Emergency Operations Plan (“EOP”), which includes the criteria for activating the above-refenced EOC: “the activation of the EOC shall constitute the implementation of the EOP.” The Governor’s Executive Order is presently “binding on all departments, commissions … and employees of the state … authorized or directed to conduct homeland security and emergency management operations.” This includes the Commission and its constituent Departments (i.e., DNC Program), which have specific Emergency Support Functions (“ESF”) pursuant to Section 4 that apply, among others, to dissemination of “Emergency Public Information” (ESF 15). In this capacity, the Commission must establish a Continuity of Operations Plan (“COOP”) “to ensure [the Commission] will continue to carry out its mission in an emergency or disaster” and “maintain logs, records, and reporting systems required by all state and federal laws, rules, and regulations.” EOP Order at Section 5.
Does the Commission’s existing directive to “continue to carry out its mission” and maintain compliance with state laws and regulations such as the DNC Program apply to Louisiana’s ongoing COVID-19 emergency? According to the Commission, the answer is presently “no.”
While this may be correct, the interaction between the Governor’s Executive Order and the Commission’s present responsibilities vis-à-vis solicitation restrictions remains unclear. Even still, the example highlights the uncertainty created when potentially conflicting or overlapping sources of authority are triggered in response to emergency declarations. This, however, is not the only source of confusion that should give caution to the financial services industry when it comes to the Commission’s DNC Program.
Separate and Unequal Notification of the Commission’s Mandatory EOC Presence Favors Registered Telephonic Solicitors
When a state of emergency has been declared by the Governor of Louisiana and the Commission’s Mandatory EOC Presence has been established, the DNC Program Manager is tasked with notifying telephonic solicitors. However, notice is not provided equally across the spectrum of solicitors (including debt collectors) impacted by the emergency calling restrictions triggered by the DNC Order. Further, the method for disseminating critical emergency information appears to favor registered telephonic solicitors, leaving non-registered solicitors more prone to supervision and enforcement activity from state regulators.
The DNC Order requires the Commission to “establish and provide for the registration and certification of telephonic solicitors that will be operating in the state of Louisiana.” DNC Order at III. F. It also requires that “[u]pon declaration of a state of emergency by the governor, the Commission shall immediately notify telephonic solicitors that an emergency has been declared and that during such state of emergency telephonic solicitation is prohibited, as outlined in V. A. 3.” DNC Order at III. G. (emphasis added).
Reading the foregoing, one would think the emergency calling restrictions presently would be in place – apparently not.
According to the DNC Program Manager, the duty to immediately notify telephonic solicitors is not a technical prerequisite for implementing the calling moratorium because not all telephonic solicitors are registered with the Commission and are, therefore, incapable of receiving “immediate notice.” Only those telephonic solicitors that the Commission requires to register (entities “identified by the National Do Not call Registry as a ‘Seller,’ ‘Telemarketer’ or ‘Service Provider’”) receive “immediate notification” via mass email alert. On the other hand, unregistered telephonic solicitors (including debt collectors) that become subject to the DNC Order’s emergency calling prohibitions during a declared emergency can receive notice only by checking the DNC Program’s emergency status webpage, which is updated after the DNC Program Manager informs registered telephonic solicitors, which in reality is not very “immediate.”
Given the divergent status and suggested notice preferences, the Commission’s position – as recently expressed by the DNC Program Manager – is that unless and until the emergency status webpage is updated during a given emergency to reflect a “mandatory EOC presence” the calling prohibitions set forth in Section V.A.3. will not be enforced. This, however, is subject to change at a moment’s notice. Accordingly, all non-registered solicitors – especially debt collectors – operating in Louisiana are encouraged to check the Commission’s emergency status webpage frequently. As of the date of this post, the Commission’s most recent status update provides that there are no additional emergency telephonic solicitation restrictions.
Although the DNC Program Manager’s recent statements could be viewed by some as an endorsement for continued telemarketing and collection activities during the ongoing crisis in Louisiana, responsible stakeholders should view the Commission’s position as a call for legislative change rather than an open invitation to continue business as usual. Given the conflicting directives of the DNC Order, as well as the potential applicability of existing Executive Orders concerning the Commission’s duties discussed above, telephonic solicitors and debt collectors operating in the Pelican State should continue to proceed with caution.