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

Why not - with so many loopholes?

[erick99]

I don't think anyone was terribly surprised that the registry was upheld. There was a lot of public support and this is, after all, a big election year. What will be interesting to see is how fast the telemarketing firms find work-arounds. For example:

"Companies can telemarket to anyone who has bought, leased or rented something from them within the last 18 months, or to anyone who has inquired about or applied for something with them within the last three months.

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

You could drive a truck full of mailing lists through that loophole. I am sure they will come up with something....

Happy Trails!

Erick

Re:Why not - with so many loopholes?

[Anonymous Coward]

It also exempts long-distance phone companies

I don't see any reference to this exemption at www.donotcall.gov. Where does it say that phone companies and airlines are exempt?

Re:Why not - with so many loopholes?

[Maestro4k]

• I don't think anyone was terribly surprised that the registry was upheld. There was a lot of public support and this is, after all, a big election year.

I think there were a lot of people concerned that the court wouldn't respond this way. The telemarketing industry has deep pockets to spend on lobbying and/or buying out congressmen/women's votes. (Granted, they aren't the only industry that does this, just the only ones that matter in the particular case.) Congress has shown time and again they could care less what their constituents really want, just as long as their industry masters are happy. Yes, even in election years. Besides, what do they really have to worry about? Most average joe citizens don't even pay attention to the local news, they're not to likely to hear about how their congressperson shoved a last-minute addon to some bill, with the addon being totally anti-consumer.

Re:Why not - with so many loopholes?

[jfengel]

In theory, the fact that this is an election year doesn't matter for the judge. Appeals court judges are appointed for life precisely to put them above politics (which moves the politics to the nomination and approvals side of things).

Popularity can get the law passed, but only the constitution (and the common law) go into whether the judge approves it.

In theory.

Re:Why not - with so many loopholes?

[kfg]

What will be interesting to see is how fast the telemarketing firms find work-arounds.

"Hello? Yes, this is the United Way. We're calling to let you know that under arrangement with Company X a small donation allows us to offer you. . . "

KFG

Re:Why not - with so many loopholes?

[Dukael_Mikakis]

You're right. From my understanding these sorts of nuisance restrictions are just an elaborate song and dance between companies (spammers/telemarketers) and the government. The government hears all the complaining from consumers (via Dateline or whatever) and some elaborate method of restricting such marketing without trampling the Constitution (upheld because telephone lines/bandwidth are private commodities?) and then it's the telemarketers' turn to peruse the writing and find the loopholes (which the parent mentioned) to sneak past the regulation, and the government has to redraft a new law, ad infinitum.

If the government violates the Constitution, game over. Likewise if these businesses violate legitimate law.

Who loses? Well, of course, the citizens, who must contend with increasingly restrictive laws regarding telephone/email usage and increasingly sophisticated and much-more-difficult-to-screen marketing tactics.

Politicians get their big victory (yeah, in an election year). And as always lawyers win on both sides trying to uphold or crack through these laws.

And it does seem ironic (and soft) that the exemptions are for those businesses that telemarket the most. Banks about mortgages and credit cards, "airlines" offering travel packages, and the like. Seems reminiscent of the recent "anti-spam" initiative. It sounds good to the voting populace, but it also has the campaign-financing corporations drooling with delight.

Politics.

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:Why not - with so many loopholes?

[melquiades]

"In theory, there is no difference between theory and practice."

(A favorite quote of mine -- someone had to say it!)

Re:Why not - with so many loopholes?

[blincoln]

I am sure they will come up with something

They already have.

I get more telemarketing calls now (4-6+ a day) than I did *before* the registry.

I was shocked (well, not really) to find out just how many non-profit agencies there are who want to get their hands on my money, as well as companies that have done business with me in the past 18 months.

I'm sure they're using the "do-not-call" list as a source for numbers. I feel like a sucker for ever signing up.

The most irritating one is an autodialer that repeats a recording about how I've been selected to receive a magically shitty vacation for only $99, but doesn't mention the name of the company so I can't report them. I was getting multiple messages a week from it on my voicemail for months.

Re:Why not - with so many loopholes?

[Anonymous Coward]

only the constitution (and the common law) go into whether the judge approves it.

... and the number of telemarketing calls the judge gets at home while he's trying to eat dinner.

Re:Why not - with so many loopholes?

[mcpkaaos]

but doesn't mention the name of the company so I can't report them

So report them based on whatever contact information the recording left in the message. Unless none was mentioned?

"Hi, you just won a vacation to Cancun! We just thought you'd like to know. Thank you!" *Click*

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.

Re:Why not - with so many loopholes?

[yoshi_mon]

I think there were a lot of people concerned that the court wouldn't respond this way. The telemarketing industry has deep pockets to spend on lobbying and/or buying out congressmen/women's votes.

The point is in this case it was not up to the congresscritters but the courts which are not nearly as easily bought as the former.

The hard part, for now until all the loopholes need be patched, has been done by getting the bill passed. We must now watch to make sure it does not get repealed or nutered by said congresscritters when we arn't looking.

Re:Why not - with so many loopholes?

[Demonspawn]

I don't understand how this is a Constitutional issue at all. The First Ammendment gives you a right to speak; it does not force me to listen to you.

--Demonspawn

Re:Why not - with so many loopholes?

[Steve B]

If you get the call live, you can press nine to talk to a human who will take your credit card number, but I don't know of any way to weasel the company name out of them.

Hmmmm... how difficult would it be for the Feds and the credit card companies to set up a batch of "honeypot" credit card numbers that could be used to establish a paper trail on this sort of thing?

(To forestall one objection, no, it isn't "entrapment" if the crook initiated the illegal activity without being specifically prompted in that direction.)

Such language!

[ackthpt]

"in safeguarding personal privacy and reducing the danger of telemarketing abuse without burdening an excessive amount of speech."

"without burdening an excessive amount of speech"? How about, "an excessive burdening of free speech"?

Must have been one of those "C" average appointments I keep hearing about.

'Officials in the telemarketing industry did not immediately return calls seeking comment.'

Yeah, that's a hoot, but rest assured, their operators aren't exactly standing by on this one, they're probably lobbying like all get out.

Re:Such language!

[RLW]

Since I have put my number on the do not call list I can eat dinner in peace. If those companies want to communicate their commercial interests with me, they can write a letter or buy an add on TV. The constant ringing of the phone is too invasive.

But you are correct in that the judge wrapped up the argument in such a way that it gave telemarketing some sort of limited right which had to be weighed against the benefits of limiting calls.

The real bummer is still the judge in Denver(?) ruled that the list was unconstitutional in the first place. If the appellate judge earned a "C" then the district judge gets an "F-".

Great News!

[mekkab]

Wooooo hooooo! Chalk one up for the little guy. Now if I could just get every other 80's fan from calling my phone number (867-5309-eee-ine) I'd be a happy man!

P.S.- no, my name is NOT jenny.

Re:Great News!

[EnsignExtra]

But your phone number is prime!

The real irony is...

[Anonymous Coward]

Even when I pay Qwest to block telemarketers, THEY call me to sell me stuff.

Please explain.

[Anonymous Coward]

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?

Where's the double standard? They have yet to challenge the legality of you not picking up your phone.

Re:Please explain.

[Rosco P. Coltrane]

Where's the double standard? They have yet to challenge the legality of you not picking up your phone.

I think they fight the right to make your phone ring at awkward hours. They don't challenge the right you have to not answer them, insult the heck out of them or slam the phone down on them.

In short, they're in the same sort of situation as the MPAA and RIAA : they have businesses nobody wants anymore, and everybody would be happy to be rid of, so they use any argument and any method to ensure they stay alive as long as possible, against the natural flow of things that would have flushed them a long time ago. I'd do the same if it was my job I suppose, or perhaps I'd start looking for another job...

Too Bad...

[Anonymous Coward]

Looks like somebody in the industry wasn't willing to cough up enough cash to get the decision over turned.

I'm not a Qwest fan

[rjelks]

My personal favorite was a call a got a few years ago. A qwest customer service rep. called at dinnertime to sell a new service. The new service in question... blocking telemarketers's calls. I asked her if it would block calls like hers and she told me, "No, you are our customer so we can still call you." I didn't opt for the service.

-

i know this tactic

[theMerovingian]

'Officials in the telemarketing industry did not immediately return calls seeking comment.'

I bet they were just in the middle of dinner, all you have to do is try your call again at 9pm.

Of Course.

[Anonymous Coward]

"Officials in the telemarketing industry did not immediately return calls seeking comment."

Perhaps we should call them over and over again, just to be sure. Around dinner time, and maybe again later.

And all hours of the weekend. Definitely then.

Can-Call Act

[fembots]

Fairly soon we'll have a Can-Call Act 2004 which allows telemarketers to call anyone as long as they identify themselves (hi, this is Mike) at the beginning of the call, and allows callees to opt-out (hang up the phone).

Finally the courts did something right....

[overbyj]

I have always been annoyed at the telemarketing industry's arguments as to why they should be able to do this. They have always maintained that it was free speech. What they fail to realize is that it is free speech that I have to pay for! Sure, I would have a phone anyway, but basically they are wasting my money. If they want to market on the street corner, go right ahead because that truly is free speech (obviously within limits) but when you come into my home on the telephone line I am paying for, then it crosses the line and that is not free speech.

This leads me to another thought. I have always wondered why the telemarketing industry doesn't pay for people's phone lines in return for getting phone spam. ISP's do it, why not here?

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:Finally the courts did something right....

[plover]

That may be the original poster's idea, (and I realize you're just trolling for a fight with him here,) but that's not what the court based this decision on. It is, however, one of the arguments used to prevent telemarketing calls over cell phones and is the basis of the junk fax law.

The court said basically that since you can post a "No soliciting" sign and positively affirm your intention to keep solicitors from your door, you have that right and that the government is within their boundaries to pass laws enforcing your right to be left alone. So in a parallel vein, if you "post your intention to be left alone on the phone" in a public place, specifically signing up for this "do-not-call list," that it carries the same intent and it should therefore carry the same weight. And the government is equally qualified to pass a law enforcing your right to request to be left alone in this parallel case.

It's very much a common sense decision, and it was backed with lots of precedence. If you read the courts' opinions on these types of cases you'll find that most often the decisions are based on common sense rather than on some weird legal twist. Sure, the odd decision comes through occasionally, but for the most part judges do issue reasonable, understandable rulings.

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

[yourmom16]

Not quite; the no soliciting signs are entirely different, they are legally valid not because of some 'right to be left alone,' but because of property rights; they do not have permission, and were expressly told that they do not, to be on your property if they intend to sell you something. If they do you can sue them for tresspassing.

So in a parallel vein, if you "post your intention to be left alone on the phone" in a public place, specifically signing up for this "do-not-call list," that it carries the same intent and it should therefore carry the same weight

No the intent alone does not make it valid. If I sell you something I own, that is allowed. If I sell you something you own, and refuse to let you have it if you don't pay me, that is illegal. In both cases my intent is to get money, so should the sales be just as valid? The difference is that while I have the right to not let you use something I own, just as you have the right to not let others on your property, I do not have the right to refuse to allow you to use your property, just as you do not have the right to make others not call you.

Free Speach unlimited commercial speach

[ScreamingLordByron]

It is refreshing to see the Courts stepping forward to reassert the legal precedent that free speach does not equal unlimited commercial speach. With the continuing growth of political influence of coporations both in the U.S. and world wide and the increasing rights granted to the these coporate entities, a clear delinitation of the the rights of individuals (as guaranteed by the Constitution) vs. the rights that have been accorded to corporations (largely as a result of campaign contributions ... giving rise to the related debate of does $ = speach in the political arena)is certainly called for. Despite the cat calls of the much of the right wing of american politics decrying the "black robed tyranny" of the american judiciary, I for one am glad to see the legal system prtecting the rights of individuals and refusing to water down the rights granted to individuals by affording equal footing to artifical entites such as corporations! Three Cheers for the proletariot! ;)

out of order

[Anonymous Coward]

Either the DNC lists are working or my phone has been out of order for a while. I'd as a friend to call and check but I only know virtual people.

Re:out of order

[belroth]

Either the DNC lists are working or my phone has been out of order for a while. I'd as a friend to call and check but I only know virtual people.

No problem, just post your telephone number here and I'm sure it'll be tested...

should be glad

[potpie]

They should be GLAD to have people block their calls, because the people blocking their calls are (probably with some exceptions) the people who aren't going to buy anything from them. It eliminates wasted phone time. Now they should rejoice that they can cut costs by focusing on the few people who actually WILL buy from them, probably just to talk to another human being (that is, if it's not an automated system).

The DNC list helps telemarketers

[B.D.Mills]

Can someone explain why the telemarketers are fighting this with everything at their disposal, when this list actually helps them? By excluding the numbers of people that are not interested in receiving telemarketing solicitations, it increases the likelihood that a particular call is to someone who is willing to buy. The DNC list also has other benefits that have not been foreseen by the telemarketers. For example, telephone numbers for fax machines and modems can be placed on this list so that telemarketers don't waste their time calling them.

Re:The DNC list helps telemarketers

[spells]

The reason is simple. You have assumed that adding your name to the DNC means that you would never buy something over the phone. Although that seems logical, it's a bad assumption. To stereotype a bit, think of a husband adding the number to the DNC because the wife keeps buying the "crap" over the phone. Telemarketers want to keep talking to the wife.

Re:The DNC list helps telemarketers

[cmowire]

I've said it before and I'll say it again.

Telemarketers are not people like you and me in about the same way as Jeffery Dalhmer isn't a person like you and me.

The problem is, because so many folks signed up for it, it very clearly shows them that people really didn't want to be called on the phone, which leads to more troubles down the road for telemarketing-related industries.

Re:The DNC list helps telemarketers

[multimed]

Because telemarketers don't care that the people they call don't buy anything during the call or even that the people are terribly pissed off and possibly won't ever buy anything from the seller again. Most telemarkers don't sell anything--they're service companies who get paid for making the calls. It's pretty similar to spam in that regard--the ones that actually are contacting the prospect (and I'll use that term lightly) are generally paid for the bulk of contacts, not the actual response rate of the ads. They're in the information business--their databases are what companies pay for and even if the people don't buy anything on any given campaign, telemarketers make their money off simply having live ones on the other end.

bypassing the laws....

[segment]

The National Do Not Call Registry gives you a choice about whether to receive telemarketing calls at home.

Define telemarketing calls. What I think will happen is companies will adapt with something to obscure the dubious title of telemarketing companies. Think about it for a second... So company X cannot call you soliciting products, but a charity can still call you. So now using some lax LLC laws, a telemarketer can reinvent itself as some form of charity Company X charity... Sure they can pitch something honest sounding but let's take a look at namebranding for a second...

charity: "Good day sir, we're with the Microsoft Save the World foundation..."

Sure it sounds dumb, but I'm sure telemarketers will find a way around this. By the way no mention of how this includes those annoying companies calling you to do independent studies, surveys, etc. At least from what I saw on the page.

Oh well, it will be a matter of time (likely after November) where an anonymous plane mysteriously drops a bag of cash on someone politicians desk, and these laws are re-argued and reverse. Just like the Public Utility Holding Company Act, Federal Power Act, and Federal Communications Act. All down the tubes.

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.

Riiinnng Riiinnng

[superpulpsicle]

Marketer: Hi we are a nonprofit agency.

Guy at home: Sorry, I am on the do-no-call list

Marketer: Yes, but we have an exceptional product which you might be interested in, in exchange for your donation.

Guy at home: How the hell can you be nonprofit and sell shit at the same time?

Re:Riiinnng Riiinnng

[Tackhead]

> Marketer: Hi we are a nonprofit agency.
>
> Guy at home: Sorry, I am on the do-no-call list
>
> Marketer: Yes, but we have an exceptional product which you might be interested in, in exchange for your donation.
>
>Guy at home: How the hell can you be nonprofit and sell shit at the same time?

Simple! Use this price list from a representative 501(c)3 UFO cult!

How do you get to be a 501(c)3 UFO cult? You DDOS the IRS with "individual" subpoenas, and if you've got enough dirt on enough politicians, the IRS caves.

Re:Is this some sort of entitlement?

[Aardpig]

I don't recall ad-free telephones being some sort of fundamental human right. How about turning off the phone at dinner time?

I think you will find this falls under the right to privacy. I have the right to enjoy my evenings peacefully in my own home, without telemarketers calling me every half hour.

It's time...

[Trolling4Dollars]

...to get these fools who think they have a "right" to market to everyone to shut the hell up. A lot of us are sick of everything being done for profit at the expense of our own quality of life. Wouldn't it be nice if you could open your inbox, look in your mailbox, answer your phone or door, and know that there wouldn't be someone trying to sell you useless crap that you aren't interested in on the other end? How novel an idea. And then on top of all of this we get other assholes coming in trying to make money off of filtering out what we don't want disrupting us. (Privacy Manager from the phone company, or move to an ISP that has spam filtering even if they are more expensive or have other limitations you don't want) So you have to PAY to keep people from trying to sell you stuff? Has it really come to that?

This is not what the founding fathers had in mind. The America we are living in has been co-opted by people infected with a severe mental problem. That problem is the idea that you can't be "successful" unless you make more money than everyone else. When did we start encouraging this kind of thing? And Why? I suppose this is what we deserve for being a culture that worships the dollar. I'm sorry, but I'd like to be excommunicated right now. I don't want to have anything to do with people who measure their value in net worth. Instead I want to be part of a culture that that discourages stupidity. One where being able to "kick ass" or "rule" is of no value. I want to be part of a culture that realizes that if life is to be fair, we have to educate everyone and address each individual case as a society. I want to be in a culture where education is not K-12, but age four - death.

But I'm getting ahead of myself. My main point is that the DNC list wouldn't be neccessary if we hadn't fostered the ills of competetive personalities and avarice. If there wasn't a drive in our society to make the most money regardless of how good or poor your product is, this wouldn't be a problem. It wouldn't be a problem if, as a culture, we DIDN'T buy the crap that is sold via telemarketing and spam and direct mail. It especially wouldn't be a problem if instead we encouraged companies to make GOOD products and then rest on the quality of their product to sell them. After all, isn't that what competition and free market is really all about? The cream rising to the top so to speak?

I have no problem with people wanting to sell things as long as they realize it's not a right, it's a privelege. And, as the consumer, it's my right to decide on my own if the product is right for me... or even useful in any way. 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.

Now let's stop the politicians

[ChaosDiscord]

My state's Do-Not-Call List has kept my phone blissfully silent for the last year or so. But the various DNC List laws have several loopholes. Perhaps the worst is the political campaign loophole. Worse yet, many of those campaigns are using automated responders which simply play a recording if you (or your answering machine) answers. Our primary is today, over the last three days I've gotten a half dozen unwelcome political calls and a dozen hung up calls that I can only guess are predictive dialers. For a phone that normally rings one a week this was a huge irritation. At least they haven't started calling my cell phone (yet).

no fun

[xot]

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.

Re:no fun

[lrucker]

I work for an outsourced Telemarketing company

You're involved in outsourcing and telemarketing - and you expect sympathy here?

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!"

Re:no fun

[texassage]

I used to work for an outsourced Telemarketing company. (Not that I am proud of it)

DNC lists are just another list of numbers that you scrub against. Most clients have HUGE lists of numbers and don't want all of them called on a particular campaign. You also have to scrub continously based on timezone, regional activities (I.E. calling during a hurricane is usually not appreciated), local, state and now the federal DNC lists.

They are NOT difficult to manage. What is difficult is finding enough good numbers to call during a shift. That is a different matter, and one that I have no sympathy for.

Does that mean

[holzp]

we can expect a Do-Not-Slashdot list to follow?

Win a free car!

[funny-jack]

One example of this already:

In our local shopping mall there is a shiny new car parked in the walkway. Next to it is a box with a pile of "entry forms" on the top of it, enticing people to enter to win a new car, or a pile of cash or whatever.

When you read the fine print on the back of the card, you find that by filling out the card, you are giving them and anyone they feel like sharing it with permission to contact you via phone or mail.

I just wonder what would happen if someone filled out one of these for me (being on the Do Not Call list) without my knowledge or permission, and they contacted me. Hmm...

The UK's seems to work

[DrSkwid]

I registered on the UK's do not call list (a list that's not exactly advertised)

http://www.tpsonline.org.uk

I was totally fed up with the weekly telesales calls.

I registered in September 2002. I've had the letter on my desk ever since, ready to complain.

It was not until today (nice synchronicity) that I got my first sales call.

The sales drone thought I was pretty interested in the call, asking for their address and telephone number and the exact nature of the 'wonderful special offer'. Of course, what I was doing was getting the drone to tell me the details required to fill in the online complaint form.

She sounded genuinely shocked when I said "Thank you, I feel it is only fair to inform you that you are in breach of the Telecommunications (Data Protection & Privacy) Regulations 1999 and as such have just been reported to the TPS".

hehe well worth the wait :)

Re:The UK's seems to work

[jonblaze]

She sounded genuinely shocked when I said "Thank you, I feel it is only fair to inform you that you are in breach of the Telecommunications (Data Protection & Privacy) Regulations 1999 and as such have just been reported to the TPS".

You did put a cover sheet on your TPS Report, right? Didn't you get that memo?

Telemarketers know their business better than you

[GGardner]

The NYT ran an article about this a while back -- they interviewed people who didn't want to buy things from unsolicited phone calls, but ended up doing so anyways, because they "felt sorry" for the person making the phone call. One woman they interviewed bought 5 $1k replacement windows, which she later admitted, "probably wasn't a good idea". She also said that she would sign up for a do not call list, to prevent her from mercy purchases in the future.

Don't think that the telemarketters don't know their own business.

loud speakers

[Stallmanite]

I don't see how spam or telemarketing is a free speech issue any more then say, making a political speech with very loud speakers, in the middle of the night, while people are trying to sleep.

I'm not so sure

[Sparky77]

By excluding the numbers of people that are not interested in receiving telemarketing solicitations, it increases the likelihood that a particular call is to someone who is willing to buy.

They don't care much about targeting certian persons. Like spammers, they just throw as much crap out there as possible to get a greater return.

For example, telephone numbers for fax machines and modems can be placed on this list so that telemarketers don't waste their time calling them.

Telemarketers almost exclusively use powerful automated dialing systems that quickly weed out bad numbers, fax machines, etc.

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:This and E-Spam

[plover]

Phone calls can be traced, but spam cannot. If you can trace the call, you can begin legal action against the caller. If you can't trace the spam, or if it leads offshore, you can do nothing.

The other big difference is due to the low cost of sending spam v. the relatively high expense of placing calls. Even if the CAN-SPAM law starts getting enforced, the spammers could simply move offshore and continue their harrassment. I constantly get Italian-language spam (salami?) even though I only know about ten words of Italian. But when you factor in the costs involved, international long distance is currently too high a barrier for telemarketers to cross.

Sadly, this might all change with VoIP. "Voila-marketers" (I just made that term up) from off-shore sweatshops who can place international sales calls for almost-free just might do for the telephone what spam did for email. Scripts and canned recordings would even drastically reduce the language barriers, permitting poor English speakers to control synthesized voices that sound as smooth as James Earl Jones'. And so your prediction may unfortunately come true.

Re:Is this some sort of entitlement?

[El]

I don't recall ad-free telephones being some sort of fundamental human right. How about turning off the phone at dinner time? I'm sure this obvious solution never occured to those of us awaiting a call back from a job recruiter, our sick relatives at the hospital, a suicidal friend in desparate need of being talked out of doing something stupid, or a child unsure whether or not they can get a ride home from the mall... ever stop to think that I might feel obliged to answer my phone because there are more important people trying to contact me than telemarketers? And that the time I spend convincing somebody who won't take "fuck no!" for an answer could make a life-changing difference to somebody else who isn't a bottom-feeding scumbag?

Re:Telemarketers know their business better than y

[gcaseye6677]

A fool and his (or her) money are soon parted. This is a fundamental truth, no matter how many laws are passed.

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

somewhat dubious

[sharkdba]

As much as I am annoyed by telemarketing, spam and all sort of other unsolicited products/services, I am dubious about this. I'm all for the Do-not-call list, but in this case telemarketers do have a point. Why allow charities and not them? The only reason so few people are complaining (even here on /.) is that most people are annoyed by telemarketing. If this was about a more neutral service, there would be serious complaints.

A better approach would be a do-not-call list with options: 1 option for "do not call me at all", and another option with "do not call me, but still allow charities", or something in this matter. This would give power to individual consumer, and remove any validity from telemarketers complaints.

Re:Free Speach unlimited commercial speach

[Kphrak]

Ummm...the right wing wanted this just as bad as the left. The only people who did not want this law were telemarketers.

I don't see how you can claim a law that was so popular on both sides of the fence as some sort of victory for one side or another. The fact is, the right wing likes judges just fine -- when they have problems with a judge, their issue is that the judge may have overstepped his bounds (using interpretation of a case as legislation). They're elected for life (so politics won't affect their performance) because their domain is the interpretation of the existing laws, not the passing of new ones.

In a perfect world, judges would be selected based on how well they can understand the law, but since this is not one of those, fights between Dems and Reps over how conservative or liberal a judge is keeps many judges from being appointed in a timely manner.

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

Can someone explain to me ...

[monique]

Why it is that non-profits and political campaigns are exempt in the first place?

My reaction when reading this blurb is, "Damn right, it's unfair -- ban them, too!"

I don't care if you're representing Joe Blow Lightbulbs Inc. or Mary Sue Parapalegic Midgit Orphans.org ... I don't want you to call, email, or mail me! Leave me the f*** alone! Don't call me; I'll call you. kthxbye.

Re:Another name for "do not call":

[MrHim]

The problem is that it costs $2 a month (for Verizon, at least). My conversation went something like this:

verizon: listing is free
me: I don't want to be listed
verizon: that's an extra charge of $2/mo
me: you're charging me $2/mo for you NOT to do something?
verizon: yes. listing is free
me: you keep saying that like its a good thing.
verizon: yes sir. What would you like to do?
me: How does my name appear when it's listed?
verizon: First initial and then last name.
me: OK. Fine. Listed.
verizon: What is your first name?
me: "Q" .. no, wait... "X"


Now when telemarketers call and ask for Mr. Him, I ask "which one"? At least 1 a week answers "X".

Make money fast

[linuxpaul]

by suing the bastards.

All this national DNC list buisness is an epilogue. The real meat-and-potatoes is in a 1991 law making all but the most carefully scripted and trained telemarketing campaigns illegal (only about 2% of calls I received last year could be considered legal). Best of all the law provides a minimum of $500 per call to the consumer that falls victim.

Don't believe me? Google for Telephone Consumer protection Act, or TCPA, you will find dozens of how-to sites, and even some lists of cases sucessfully collected. (I'm still working on my site, someday appearing at noroutetohost.net) Cases can be filed in small claims for usually less than $50 (which is added to the judgment anyway), and by filling out a simple one-page form.

I have already deposited $4,500 and am in the process of collecting $9,000 more, for what I can't imagine is more than about 40 hours of research/filing/court appearances total ( > $100/hour!). You might be suprised how satisfying it is to watch a telemarketer cut you a check right in the courtroom...

These calls are illegal, but they make them anyway, because the law is written so that only the consumer with the phone can take any action to enforce the law (e.g. collect money), and almost no consumers do. If you don't like these kinds of calls you might consider changing that.

Re:Another name for "do not call":

[Trejkaz]

If they let me customise the name it appears as in the book, I would have used Hugh Jass, or Eyemer Etard.

Rant and Rave

[jefu]

You, sir, to put it simply, are a fool.

Before the Do Not Call list I got phone calls at all hours from telemarketers. Dinner time not excluded. (They at least had the sense to not call in the middle of the night.)

Should I then keep my phone turned off all the time?

I pay for the phone service for my own reasons and purposes. I do not pay for it for someone else to use to sell me something.

You say: "I don't recall ad-free telephones being some sort of fundamental human right."

I don't recall telemarketing being a fundamental human right either and for you to imply that telemarketers have more right to use my phone line than I have to say they should not seems to me shortsighted, ignorant and generally pretty damn stupid. Come to think of it you are probably an MBA. And what kind of twisted logic allows you to claim that their right to profit somehow trumps my right to privacy?

Tell you what. Post your phone number here. I have some used books I'd like to sell. Be glad to call you about them.

</rant>

Sorry for the rant, but I feel so much better now.

Re:Get a clue

[Mangal]

Check out The Corporation- this documentary argues effectively that if we are going to treat corporations as legal "people" then we can also evaluate their behavior as "people". Corporations are pyschopathic and should have their charters revoked before they do any more damage. (www.thecorporation.org)

Not a double standard

[thehomeland]

'Officials in the telemarketing industry did not immediately return calls seeking comment.'

This little sentence is not a key part of the story -- it is a common phrase used in journalism (I have been a reporter for 2 newspapers) to basically mean, "We left a message at the last minute on their machine but they didn't call back before my deadline" but actually sounds like it's the source's fault.

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.

DNC? We don't need no stinkin' DNC...

[finelinebob]

Man, with all this Primary crap, the Democratic National Committee is definately calling too many people. I'm glad they finally have a list of people to call, and I'm glad I'm not on it!

Re:Is this some sort of entitlement?

[Steve B]

If you want privacy from salesdrones knocking on your door, hang up a "NO SOLICITORS" sign.

If you want privacy from salesdrones ringing your phone, post a "DO NOT CALL" notification on the list.

The two are precisely equivalent, and equally deserving of police enforcement against people who violate your property rights by disregarding them.