10th Circuit Says FTC Can Enforce Do Not Call

TCPALaw writes "Reuters is reporting that the Tenth Circuit Court of Appeals has just ruled that the FTC can go ahead with administration and enforcement of the national Do-Not-Call list, staying a lower court ruling that blocked the FTC from implementing the list. Now I can sue those pesky telemarketers .. I have already gotten 3 telemarketing calls to the phone number I put on the national list since the list went into effect." Reader jhlund1976 points to the court's decision itself. Note, as strredwolf does, that this only means the FTC can "run the registry while a challenge from telemarketers winds its way through the courts." Strredwolf also points to the all-knowing Google News link.

Comments

FCC and FTC

[rmohr02]

So both the FCC and the FTC can enforce the do-not-call list. Personally, I don't care who enforces it as long as they have the power to do so.

Speaking to people

[rf0]

At the end of the day its my choice if I want to speak to someone. If someone in the street says hi and I don't want to speak to them I won't. Also if I put a sign round my neck saying "Don't speak to me", as its my right I would like to think people would respect that.

If I do the same on my phone and say I only want people who I know or need to speak to contact me why shouldn't I be allowed? If I want to speak to someone about a product I will call them

In the UK there is something similar called the TPS (Telephone Protection System) which actually does work but the again we don't have the implicit right to free speech

Rus

Re: Speaking to people

[Black Parrot]

> If I do the same on my phone and say I only want people who I know or need to speak to contact me why shouldn't I be allowed?

In the USA it's popular to confuse the idea of "freedom of speech" with the idea of "guarantee of an audience".

Especially popular when there's money in it (and also among k00ks whose messages are being ignored).

Re:Speaking to people

[rossz]

The implicit right to free speech is not all encompassing. Certain things are excluded. Threatening someone is a criminal offense is but one example. Limiting commercial speech has been upheld by our Supreme Court (sorry, I don't have the citation).

If free speech was all encompassing, then businesses could outright promise the world if you used their product. The truth in advertising laws are a limititation of commercial speech, so the beer companies can only imply you'll get laid by bikini models, but never actually say so. Same goes for tobacco product commercials. They are completely banned on t.v. and radio. If free speech applied to commercial speech, those bans would be declared unconstitutional.

Re:Speaking to people

[jhunsake]

Questioning the Holocaust should never be a crime. It may bring in to question your sanity (the same as questioning if 1 + 1 = 2), but it shouldn't be a crime to be ignorant.

ummmm.....

[HeyYou82]

"I have already gotten 3 telemarketing calls to the phone number I put on the national list since the list went into effect."

well, you can't sue them, since the list wasn't supposed to be enacted until early October anyway, meaning that even though your name was on the list, it was not yet banned from telemarketing calls.

regulation vs unwanted callers.

[dilvie]

It's a numbers game, really. What is the bigger pain the the public's arse? 60 phonecalls / day that we don't want to get, or some regulation that gives us a central place to say, "don't call me, or I'll SUE YOU."

The fact is, for consumers, the numbers are against us. There are LOTS of businesses out there competing for our interest, and they will use any outlet they think is valid for their marketing purposes.

The more people they can get their message to, the better. That means that as they all expand their marketing efforts, we all get a lot more calls. The problem is, there's a limit to how many unwanted solicitations we as individuals can tolerate, and I don't know about the rest of you, but I've reached mine.

The law is flawed and should be rewritten

[geekee]

Although I agree that telemarketers don't have the right to call me at home if I don't want them to, I don't like this law because non-profit and politcal organizations are exempt. This is unconstitutional in that it makes a distinction between speech for profit and speech with other agendas. If it's not a free speech issue (as I think), but instead a no free platform for speech issue (i.e. you can have your free speech, but not in my living room), then I should have the right to block political and non-prfit calls as well.

Re:The law is flawed and should be rewritten

[Anonymous Coward]

No, it's not. Key distinction: the government is not prohibiting the speech; the prohibition is initiated by the citizens who don't want to be annoyed. It's not about freedom-of-speech, they're trying to get the court to grant them a right to harass. If anti-stalking laws are constitutional, the anti-telemarketing laws must be as well.

Now, it wouldn't hurt my feelings at all if they fixed this alleged shortcoming by stopping the "charity" calls and the politicians, too. It's my phone, and I don't want any of them using it.

Re:The law is flawed and should be rewritten

[sik puppy]

I don't know about re-written, but perhaps expanded.

First have the main list for commercial telemarkets, as now exists.

Add a second list for politicians, and a third for non-profits.

That would allow people to filter according to personal choice, although I'm fairly certain most would opt out of all 3 types of calls.

Re:In Canada

[macemoneta]

The reason that it has come to a legal device like the do-not-call list, is that some telemarketers have abused their privileges.

I have had telemarketers laugh at me when I politely asked to be removed from their call lists. I have had telemarketers actually berate me for not interrupting them sooner to tell them I was not interested. I have had the same company telemarketer call me six times a day (they don't all block CallerID).

Yes, I have filed complaints with the companies involved. I have gotten polite responses. I have never gotten my name removed from any call lists (at least not that I can tell from the dozen calls a day that I have gotten).

The last couple of days, the silence is deafening! I guess an $11,000 fine per offense is an adequate deterrent.

Re:In Canada

[calcifer]

well, this is just speculation, but i think the reason people ignore your requests and laugh at you is because you live in the US.

here in Canada, where people apologize for everything, the telemarketers mumble an apology and dont call back. this kind of shows the fundamental differences between the two cultures.

My first "Survey" call was yesterday

[stoolpigeon]

-- this is such a huge gap in the law. The call went something like, "Hello Mr. Foo, this is National First Mortgage and we are conducting a survey of people to see who would like to refinance..." That is where I hung up.

I expect as the number of telemarketing calls I receive drop, the number of surveys will increase.

Nobody enforced the old laws. Hope they do now.

[HDlife]

All of those pre-recorded telemarketing calls have been illegal for 12 years and nobody would bust them. I hope the bigger fines will get somebody, somewhere interested in seeking out and fining the scofflaws.

Forntunately offshore calls still covered...

[HDlife]

...as long as there is someone in the US who hired the off-shore callers.

The rules cover this

"Similarly, it makes no difference whether the calls are made from outside the United States; so long as they are made to consumers in the United States, those making the calls, unless otherwise exempt, must comply with the TSR's provisions."

A few random thoughts..

[windows]

The telemarketing companies complain that the DNC list will severely harm their profits. But with some simple and rather obvious reasoning, it's very easy to dispute this claim.

Consider this, if your number is on the DNC list, chances are you weren't likely to buy much from a telemarketer, anyways. What telemarketers assume is the 50 million numbers that are on the list would be every bit as likely to buy from them as the numbers not on the list. I think my scenario is more likely.

I tend to think the people that haven't signed up to the DNC list either aren't really annoyed by telemarketers or they find some of the products useful and would buy from a telemarketer. There's also the people who don't know of the DNC list, but I doubt that accounts for very many people.

So the real effect of this is the people who are willing to buy from the telemarketers are far less likely to sign up for the list.

It was a wise webmaster who said, in response to some clients blocking their banner ads, that he doesn't care. If they block the banner ads, they probably wouldn't click or buy, anyway. It saves him bandwidth.

Along the same lines as his argument, I'd argue that this actually makes telemarketing more efficient. You are more likely to sell your products to someone who would not sign up for the DNC list than to someone who would sign up for it.

Another thing that really annoys me about telemarketers is when they call, they usually show up on my caller ID as UNAVAILABLE. The problem is there are also legitimate callers who show up the same. I think it needs to be mandatory that those conducting phone calls for the purpose of commercial activity (solicited or otherwise) should be required to display their number and business/name on the recipient's caller ID. This means if you're calling someone to try to sell them a product, you can't call anonymously, either.

Even if the DNC list is overturned in court, my idea for requiring them to show their caller ID information is completely constitutional. And anyone who has a caller ID can simply not answer the phone if they don't wish to receive such calls.

Re:A few random thoughts..

[cmowire]

See, here's the problem.

You are a rational person. You *know* that if somebody says no, they probably mean no.

It's a bad parallel to draw, but telemarketers are the type of person who thinks that if the girl says no, they just need another drink or two. Telemarketers are not people like you and me. Every number they can't call is a person who just doesn't want to admit yet that they want whatever they are selling. Because they know that whatever useless cooking gadget that breaks in 2 weeks or less, credit card, mortgage refinancing, etc. that they are trying to sell, everybody who hears about it wants it. If they could, they'd call each and every person on the do not call list because they figure that nobody else will and they *know* you will love whatever it is that they are selling.

The overall problem is that the presence of the DNC list makes it pretty clear that all of the lines that the telemarketers have been feeding their clients and lobying legislators about are all lies. They don't call legislators, you know, so they have no normal way of knowing how bad it is. Their clients were under the impression that they were not universally reviled, just that a disproportionately noisy bunch of people were annoyed. So even if it makes their business better, they can't afford to let it lie. I have a sneaking suspicion that even if the DNC list isn't constitutional, it will discourage legitimate companies from dealing with telemarketers.

Well, we all know what this will end up in..

[deniea]

It's just too plain obvious that will happen next; in every 'charity' call, they will try and sell you stuff you don't want, and will 'donate' $1 to a charatiy, by that making it a 'charity' call.

So they will still call, telling you that they focus on they charity, trying to sell you stuff you do not want/need.

The rules are plain to unclear from my point of view...

Which is good....

[Vermifax]

because no such law was passed.

The Law says the government enforces my telling them they can't talk to me.

Re:Finally

[EverDense]

Telemarketing is not, and never was, harassment.

Oh YES, it damn well is.

Definitions of Harrasment is:
"To irritate or torment persistently."

A lot of people find it irritating that telemarketers call persistently them
at dinner time.

Re:What's the deal with this?

[TrentC]

Why do these people think they can get away with it?

The same reason spammers think they can get away with putting "This is not spam" in their emails; because they have zero respect for the people they're calling. They think you're too dumb/gullible to protest.

Should I report them?

Well, it's easy for me to spend your money on lawyers on your behalf, but I'd say yes. The Do Not Call list will only be effective if it's enforced. If telemarketers can wink and nod and go on about their business, then all of this hoopla is for nothing.

Jay

Re:Finally

[dissy]

> Did the envelope just WALK AWAY? No: You never put it there in the first place.
>
> People, hanging up on the telemarketer is not the same as telling them to
> not call you!

Right.... And ???

I am here telling you that I tell them to not call me. I generally even say please first. Usually I say "Please do not call this number back. Thank you, Bye." or something similar, then wait to hear if they hangup or start talking. I will not speak after this point, even though I am listening. Only once did the telemarketer actually hang up the phone. The rest just ignored my polite request and continued to annoy me. After a couple of seconds I will then hangup.

If they ever call me back, at that point everything legally is in place for me to obtain a court order to keep the person out of my life.

This holds true no matter how a person is bothering you and not stopping after you ask. If they did this exact same thing in person, and were selling whatever it is door to door, and refused to leave my porch after both asking them to leave and also closing the door on them. They have no right to stand out side and ring my door bell continuously. If one would call the cops they would be arrested. This is the law.

The exact same harassment laws can also apply over the phone.
There is even a system in the USA where you can dial *57 and log a trace of the last person tha called you with the phone company and authorize them to share that log with the authorities. Ironically this feature costs $5 to use, but as its for preventing harassment and not to be used lightly (You never see the trace, only the cops and phone co do)

Harassment is defined in the law. Calling you multiple times on the phone after being told to stop is indeed covered.

Perhaps you made the mistake in using the dictonary definition of the word harassment, or something like that. I dont know. But as far as legalitys go, the words in law are usually defined very detailed and very differetly.

I personally do not feel I should be forced into getting court orders aginst the thousands of thousands of telemarketing companys out there.
Not to mention when they 'fold' and turn up under a different name, and the court order will not apply.

And since there are thousands upon thousands of telemarketing companys, this is in effect a legal DDoS, which is not the easiest thing to beat.

The do not call list is actually just enforcing existing harassment laws in a new day and age to adapt to our situation.
After all, im sure when the first harassment laws for this country were made, phones wernt around just yet.

Re:Finally

[Insurgent2]

So what if someone who calls me can never call again?
There are 22.9 million businesses in the US.
Do I have to tell every one individually (most of whom have a problem identifying themselves unless you pretend to be interested in buying their crap) that I don't want them to call??

As for the unlisted number crap, once you give your number to any company, your number is fair game. There is no regulation stating that they are not allowed to call unlisted numbers.

Oh, and by the way, get a clue. There is nothing in the constitution referring to the forcing of a person to be subject to a barrage of commercial speech in the privacy of their own home.

Re:Finally

[dissy]

> If you don't want people calling your phone number, it shouldn't be publicly
> listed. That's why people have private phone numbers, so they aren't bothered.

My number is unlisted, and I do not give it out to companys.
At quick count only about 4 or 5 of my closest friends even have that phone number. I generally use my cell phone for my other friends and a very small list of companys which i assume would be safe (IE Doctors office)

I do get telemarketer calls on the landline.
And the only documented proof I have is my caller ID box showing the multiple calls from the same company, and my word that I indeed told them to not call me again during the first call.

Unfortuatly in the past couple years almost all telemarketers showup as 'unknown' anyway, so I have no way to prove I already talked to someone selling the exact same thing.

I'd have to guess that I can think of a good 10 products being sold (I generally didnt ask for a company name) where they did call back after being told not to.
Now I realize some of those 10 could very well be totally different companys selling the same item, but I cant believe 'most' of them, and its definatly not all of them.

> It disturbs me that people will piss on the First Amendment so easily for a
> little comfort. Hello, CONSTITUTIONAL RIGHTS are a bit more important than
> dodging a phone call. UNLIST YOUR NUMBER!!!

Um. Well, you'll be glad to hear that the First Amendment has nothing what so ever to do with anything in this thread.

I dont care if they pitch their sales to people that care to hear it.
All I know is I dont want to hear it, have told them so, and am still _forced_ to listen to it aginst my will.

And the do not call list, by its very definition and nature, is a *list* of people that are clearly stating they do not wish to listen to telemarketers.
It is not the place for you or the government to force this speach onto me if I do not wish to hear it, and have made my wishes known by stating so on the do-not-call-list which I had to ask the government to add me to in the first place.

The First Amendment does not grant you the right to force me into anything aginst my will.

And as to your "UNLIST YOUR NUMBER!!!" comment, thank you for suggesting what I did as I ordered the phone line 9 years ago. Got any suggestions that may have something to do with solving the problem of harassing calls?
As it would seem, adding or removing my number from the public phone books should have no physical means or otherwise to magically make that number removed from the telemarketers lists.

Re:Finally

[dissy]

*sigh* you just dont get it do you.
I appologize if it sounds like I am losing my temper, but it really sounds like you are purposly ignoring what I am telling you, and then repeating your first incorrect comments again.
Going by my insightful mods and your troll mods, I can only assume its not just me seeing things.

Ok, lets try this a different way.

> OK, so why make a law to dodge telemarketing calls?

It isnt. Its a law to fight a form of harassment (as defined currently in our law) aginst an industry that traditional legal defenses are not apt to use (IE court orders to not call me, taken out aginst each company)

> You could just not answer calls that have blocked numbers.

This is what I am forced to do.
Ligit callers that do not show up on caller ID now must leave a message.

> You could get a TeleZapper. Verizon has Call Intercept.
> How hard is it to be proactive?

I dont call that being proactive. It is not solving the problem.

Using that logic, every time a stalker finds where their target lives, the burden and cost is on the target to move, and not the person commiting the crime of stalking.

You can stalk and harass over the phone too. And there are thousands of them out there doing this to everyone.

> I'll bold the relevant portions:
>
> Congress shall make no law respecting an establishment of religion, or
> prohibiting the free exercise thereof; or abridging the freedom of speech, or
> of the press; or the right of the people peaceably to assemble, and to petition
> the government for a redress of grievances.

So I will reply to the bolded portions.
Noone, congress or otherwise, is planning to make a law aginst telemarketing, nor abridge them from doing it. Telemarketing will still be legal after the do-not-call-list is activated. That is why it is a list.
If they were gonig to outlaw telemarketing as a form of speech, there would be no need for a list. If it was a law, everyone is included, like it or not.

Maybe this is the part you are getting confused on.

Harassment laws already trump freedom of speech. Ask a lawyer.
Once a telemarketer crosses the line from marketing to harassment, they have broke existing laws.

The first item of your post asked why I want them to pass a new law.
I'll tell you.
Because its annoying as hell for me to go to court and pay tons of money (atleast to a lawyer, if not to actually get the court order, depending where you file it) many thousands of times, and it would be much easier for me to say no once. That is all the do-not-call-list is.

So, if you are in person harassing me, its already illegal.
Then, i get a court order aginst you to not come near me.
Why on earth do you feel there shouldnt be a stronger punishment if you continue to come near me after the court order is issued to you???

I aggree with the law that there should be. And its no different with the do-not-call-list. There should be a siffer penalty for those that continue to commit the crime aginst me after being told to stop.

Next...

> Really. Someone held you down and forced you to listen.
> No.

Clearly if people like you had their way, this would be their next step.
Assult is just as illegal as harassment. Id like to keep it that way.

To answer you, they dont need to hold you down to force you.
And you are suggesting I do things proactivly to fix the problem.
I wouldnt very well have to do that if i wasnt being forced into it, now would i?

> No one forced you to lease a telephone line. No one forced you to answer
> that phone.

I live here in the real world. So yes, I am forced to do so if i wish to keep my chosen life style. Are you suggesting I let criminals force me to change my life style too?

Other people may be happy living as a hermit in the woods with no connectivity to others, but that isnt me