Appeals Court OKs FTC's Do-Not-Call List

GTRacer writes "The USA Today website just posted a report that the 10th Circuit Court of Appeals (Denver) has upheld the FTC's national Do Not Call registry. In their decision, the Court found the list to be 'a valid commercial speech regulation...without burdening an excessive amount of speech.' The telemarketers had challenged the constitutionality of blocking commercial free speech while allowing charities and select others to continue phone solicitation. Interestingly enough, 'Officials in the telemarketing industry did not immediately return calls seeking comment.' Isn't it now obvious these people have a double-standard when it comes to reaching out and touching someone?" The court's decision is available to read.

Comments

Also, banks are not 'exempt'

[missing000]

As a consultant for a large mortgage bank, I can assure you banks are not exempt.

This fact helped me convince upper management that outbound campaigns were a cost prohibitive idea.

Re:Why not - with so many loopholes?

[squiggleslash]

It also exempts long-distance phone companies and airlines; banks and credit unions; and insurance companies operating under state regulation.

Sort-of. Phone companies, banks/etc, and airlines for some reason fall under the FCC's remit rather than the FTC's, so this is why they're "exempt". Except they're not, the FCC has ruled that these organizations are bound by the DNC list too.

Which is why those of us who've signed up haven't had any unsolicted calls from phone companies or credit card issuers. :)

Re:Finally the courts did something right....

[plover]

The judge's opinion in this case was that a person's home has always enjoyed a unique place with respect to the homeowner's rights. The concept of "cost" to the recipient didn't enter into his argument.

Here's the relevant quote from Frisby v. Schultz the court cited in this ruling:

One important aspect of residential privacy is protection of the unwilling listener. ... [A] special benefit of the privacy all citizens enjoy within their own walls, which the State may legislate to protect, is an ability to avoid intrusions. Thus, we have repeatedly held that individuals are not required to welcome unwanted speech into their own homes and that the government may protect this freedom.

Re:It's time...

[Anonymous Coward]

"Sorry, but even if I was bald, I don't think I'd be buying spray on hair. It just doesn't seem like a good idea."

It's not. I'm bald, I tried it, it sucked. End of story.

For Australians

[Anonymous Coward]

Aussies can sign up at the Australian Direct Marketing Association. The form is here and covers email, snail mail, SMS, as well as telephone. I have noticed a decrease in telephone spamming since joining up.

You can also go to yourprivacy.com.au and fill out a form to protect your information being farmed from electorals rolls etc. Right here in fact. The same website has a telecommunications do not call form (that doesn't seem to include snail mail).

Re:no fun

[Tackhead]

> I work for an outsourced Telemarketing company and i can tell you the DNC lists are NO fun at all to manage!
>
> And now that its got wide coverage , everyone we call wants to be or has applied to be on the FTC's list.All this is besides the numerous state lists that are maintained by all the states.

"Good!"

If that doesn't make my opinion clear, I have another response that should make it three times as clear.

"Good! Fuck you!"

it's called "push polling"

[schwaang]

And it has been used to stealth market junk long before it was used to sell candidates: push polling

Re:And this matters to me how?

[plover]

Our Constitution is pretty firm on what Congress has the power to do on a federal level, and I can not see how Congress has the power to control who can call you and who can't. If someone is a burden, find one of the many solutions that already exist, rather than placing yet another law on the books that really helps no one and harms many.

For the most part, I agree with you that we already have so many bad laws on the books that we don't need any more. Regarding the powers granted to Congress by the Constitution, well, that has pretty much been derailed for many decades now, and you're free to go join a Congress v. Constitution debate over in any usenet group; I'm not interested in that argument here.

But, to answer your question as to how the judge upheld this, it was covered quite nicely by being an opt-in program. If you're not on the list, you are fair game. However, if you are on the list then you have explicitly made the statement of choice that you do not wish to receive calls of a commercial nature. There are other factors: you have always enjoyed special protections in your home; commercial speech has always been held in lower regard than other forms of speech.

The court has issued a very reasoned judgement, and it's backed by lots of precedent. You should at least read the summary. Here, I'll post it, it's short:

The four cases consolidated in this appeal involve challenges to the national do-not-call registry, which allows individuals to register their phone numbers on a national "do-not-call list" and prohibits most commercial telemarketers from calling the numbers on that list. The primary issue in this case is whether the First Amendment prevents the government from establishing an opt-in telemarketing regulation that provides a mechanism for consumers to restrict commercial sales calls but does not provide a similar mechanism to limit charitable or political calls. We hold that the do-not-call registry is a valid commercial speech regulation because it directly advances the government's important interests in safeguarding personal privacy and reducing the danger of telemarketing abuse without burdening an excessive amount of speech. In other words, there is a reasonable fit between the do-not-call regulations and the government's reasons for enacting them.

As we discuss below in greater detail, four key aspects of the do-not-call registry convince us that it is consistent with First Amendment requirements. First, the list restricts only core commercial speech i.e., commercial sales calls. Second, the do-not-call registry targets speech that invades the privacy of the home, a personal sanctuary that enjoys a unique status in our constitutional jurisprudence. See Frisby v. Schultz, 487 U.S. 474, 484 (1988). Third, the do-not-call registry is an opt-in program that puts the choice of whether or not to restrict commercial calls entirely in the hands of consumers. Fourth, the do-not-call registry materially furthers the government's interests in combating the danger of abusive telemarketing and preventing the invasion of consumer privacy, blocking a significant number of the calls that cause these problems. Under these circumstances, we conclude that the requirements of the First Amendment are satisfied.

A number of additional features of the national do-not-call registry, although not dispositive, further demonstrate that the list is consistent with the First Amendment rights of commercial speakers. The challenged regulations do not hinder any business' ability to contact consumers by other means, such as through direct mailings or other forms of advertising. Moreover, they give consumers a number of different options to avoid calls they do not want to receive. Namely, consumers who wish to restrict some but not all commercial sales calls can do so by using company-specific do-not-call lists or by granting some businesses express permission to call. In addition, the government chose to offer consumers broader optio

Re:Why not - with so many loopholes?

[dhall]

From the actual website, under "more information"

https://www.donotcall.gov/FAQ/FAQBusiness.aspx#W ho

One caveat: if a consumer asks a company not to call, the company may not call, even if there is an established business relationship. Indeed, a company may not call a consumer - regardless of whether the consumer's number is on the registry - if the consumer has asked to be put on the company's own do not call list.

Basically if you ask them not to call when you sign up for their services, they are legally obligated to NOT call you.

I've had telemarketers attempt to bullshit me by saying, "we're the phone company, we're allowed to call you", at which point I throw them the riot act. It's BS, and they obviously have only read as far as they wanted to read, and no further.

S.I.T tones for the people!

[Mick Ohrberg]

If you have an answering machine, try recording this S.I.T. (Special Information Tone) just before your regular greeting message. At least it will confuse your mother-in-law, even if some PD (Predictive Dialer) softwares can get around it somehow.

The three well-known tones have the frequencies 985.2 Hz, 1370.6 Hz, and 1776.7 Hz.