A slate of trade groups is lobbying the Federal Communications Commission to make a rule that would pre-empt states' authority to regulate interstate telephone marketing. The move, designed to save the vestiges of the telemarketing industry left over from the Do-Not-Call Registry, will likely serve as a precedent for how the federal government views state regulation of other interstate marketing practices, including those conducted over the internet. DM News reports that the petition claims that the Telephone Consumer Protection Act (TCPA) was meant to create a uniform standard, but that the states haven't adapted their numerous laws to comply.

The FCC has been ducking the federalism issue by saying that it will consider complaints against specific state laws on a case-by-case basis. The new petition calls this strategy "doomed to fail."

The telemarketing groups hope to use the FCC to route around a thicket of differing regulations imposed by many individual states. But the use of telemarketing practices may not be the most advantageous sort of case with which to test the federal pre-emption issue. On one hand, the TCPA does provide some instructive congressional intent, but on the other hand, everyone hates telemarketing calls, providing for a strong populist impetus for states attorney general to puff out their chests and make a stand for states' rights.