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?

[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?

[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?

[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.

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.

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.

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.

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.

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

[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.

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?

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.

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?

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.

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.