"Do Not Call" Roller Coaster

Modern Americans often have divided opinions about who our enemies are. In spite of national policies, some have favored North Vietnam, Saddam Hussein, or even the Soviet Union. One group, though, has earned our nearly unanimous displeasure: the telemarketing industry. Their incessant assault on the peace of our homes may not have made them Public Enemy Number One, but they must be in our top ten.

Congress has been trying to relieve our irritation by working on a national "do not call" list. Both houses have passed a bill that would authorize federal regulatory agencies to set up a list of people who don't want to receive telemarketing calls. Americans have signed up for the list in droves. The Federal Trade Commission (FTC) is ready to start assessing penalties against telemarketers who call anyone on the list after October 1, 2003.

The telemarketing industry has been fighting back using federal lawsuits. Amazingly, they have had some success with two different approaches. First, a federal judge in Oklahoma ruled that the Federal Communications Commission should regulate telemarketing, not the FTC. Congress quickly passed new legislation making it clear that they intended to give the authority to the FTC. That put the "do not call" list back on track.

On the very same day that Congress acted, yet another federal judge in Denver ruled that the law would violate the First Amendment guarantee of free speech, thus putting the list on hold again. Judge Nottingham reasoned that, since the new law applies only to commercial phone calls (charities, pollsters and politicians are exempt), it is an unconstitutional limit on speech based on content. Congress hasn't yet announced how they will respond to the latest court order.

Is the law indeed a violation of free speech? It is not regulation of speech at all. Instead, it gives phone subscribers the power to specify that they don't want telemarketers to invade their homes via the telephone lines. An obvious corollary to freedom of speech is freedom not to listen. The telemarketing bill simply codifies that right. Telemarketers are still free to talk to anyone who will listen.

Nottingham does have one good point. Why should we not be allowed to prevent charities, pollsters and politicians from calling us as well? I, for one, resent calls from these protected groups as much as I do those from product salesmen. In fact, as much as we may resent the calls, many of us find it harder to hang up on our alma mater than on an insurance or credit card solicitor.

Worse yet, telemarketers are already starting to claim that their calls are surveys. I've been getting lots of calls lately in which the telemarketer first says "I'm not trying to sell you anything or influence your buying decisions. I just want your opinions about ..." This in spite of being on the Indiana "do not call" list. If the exception for pollsters is left in the bill, that is how all telemarketing calls will start. The volume of calls will hardly be affected.

Congress could satisfy Nottingham's objections by removing those exceptions to the "do not call" list, or by allowing people to specify which categories of calls they want to accept. That would get things moving again quickly, and improve the bill at the same time.