Do Not Call List

Abstract

For years companies from all areas of commerce were allowed to call anyone they thought might be a candidate for their product without repercussions. A court order on Feb, 17th 2004 upheld an order to allow the general public to be listed on a do not call list. Businesses will now be held responsible if they contact someone on this list without their permission. The question is did the court make the right decision.

We may not agree on much in this country, but one thing most of us can agree on is that telemarketing is a big nuisance. In fact one survey done by Walker Research in 1990 showed that 70 percent of Americans considered telemarketing an invasion of their privacy. In February of 2003 the Federal Trade Commission passed a national law that would restrict the consumers telemarketers could legally call and enforce an $11,000 fine when ignored. By September of that same year more than 50 million Americans had added their names to this list. Telemarketers fought back though claiming that they had the right to be making these calls under their constitutional right to free speech and the case went to court. Finally, after a series of court battles between these companies and the FTC, in February of 2004 the appeals court upheld the so called Do-Not-Call list and the right of Americans to sign up. This brings about the question of how effective this law will be. Also should the average consumer be able to restrict the calls that come into their phone line or do these large businesses have a right to market their products over the phone?

The American Teleservices Association claims that the registry violates the First Amendment rights of telemarketers in regards to free speech. But what is a "right"? A right can be defined as something to which a person is entitled by law, tradition, or nature, which does not detract from someone else. My freedom to practice my religion takes nothing away from you. However, a house is not a right, since providing me with a house requires land, materials, and labor, and it is one fewer house that is available to be given to someone else. There is a cost involved in entitling me to a house that must be carried by someone else; therefore the entitlement to a house is not a right. If I choose to pay for the house and the seller agrees to accept my payment, that's a whole other story. My freedom to speak my mind does not impose a cost on someone else. Yet, forcing someone to listen to me speak my mind does impose a cost. This is the heart of the matter, which many people fail to understand: The right of free speech does not include the right to an audience. You have to earn an audience, which must be given of their own will. If not then the company is violating one of the most basic rights we have and that is the right to simply be left alone. As stated by the 10th U.s. Circuit Court of Appeals in The Associated Press (Feb. 14, 2004) "Just as a consumer can avoid door-to-door peddlers by placing a 'No Solicitation' sign in his or her front yard, the do-not-call registry lets consumers avoid unwanted sales pitches that invade the home via telephone".

Telemarketing businesses disagree with this point of view of course. They view their work as simply another way and means of advertising. The Direct Marketing Association fought the ruling in Sept. of 2003 and won with the court stating that the original law was imposing on their right to freedom of speech. They stated that the phone lines were owned by the phone companies and not the consumer which for the most part was true. Companies such as SBC and AT&T had built most of them yet the phones at the ends of these lines are owned by the general consumer. This is where the customer's argument comes back into the light. With the phone being theirs they strongly believed that they should have the right stop inbound telemarketing calls. Unfortunately for the consumers the U.S. District Court of Oklahoma didn't see it this was and Ð''unplugged' the do-not-call list. The court believed that the law was infringing too much upon the big businesses and took away too many of their rights under the First Amendment.

Big Telemarketing's other claim is that it would kill the golden goose that provides $100 billion a year in sales. This is a very spurious claim. When they tell you that billions of dollars in sales are generated from telemarketing that is probably true. What they don't tell you is that that figure encompasses both inbound telemarketing (ITM) and outbound telemarketing (OTM). The term "telemarketing" simply means "selling over the phone." When the business calls you at home during dinner that is OTM, which is the telemarketing that people think of when they think of telemarketing. If you see a commercial or a print advertisement for a product or service and you call up the 800 number to order it, that sale is also considered telemarketing. ITM means that the customer initiated the call. Since the $100 billion figure includes both ITM and OTM, Big Telemarketing exploits the public's unfamiliarity by lamenting the potential loss of both when in reality the registry only affects one. And to keep the waters sufficiently muddied they'll never include in any press release the percentage of sales that are inbound as opposed to outbound. Personally, I don't know what the actual ratio is. But since every ITM contact involves someone that is interested in the product or service, and more than 30 million people have declared that they want nothing to do with OTM, common sense can tell you which one makes up the vast majority of that $100 billion. The people that signed up would still say "no" to a telemarketer even if there was no list, so in essence that makes the telemarketer's job more efficient. As Billy Tauzin was quoted in CNN Money (Sept. 24, 2003) "To those who said this is a free speech issue, this is not about speech. This is about your right not to hear, not to listen," Tauzin told Dobbs. "If you don't want to listen, you ought to get on this list. This court in Oklahoma is not going to stop us". And they didn't. In Feb. 2004 the U.S. Court of Appeals turn over the decision bringing the do not call list back online.

Of course to suggest that the entire industry would evaporate because of the do-not-call list is ludicrous. Antagonizing potential customers doesn't seem to be a really intelligent method of building up goodwill for a business. Many large businesses contract out their telemarketing duties to outsourced companies. So odds