Do-Not-Call list validated by the Supreme Court.

[SirFozzie]

(May I say Alle-freakin-leuia? :D)


'Do-not-call' list wins in high court
Supreme Court rejects appeal by telemarketers that registry violates free-speech rights.
October 4, 2004: 10:47 AM EDT

WASHINGTON (Reuters) - The U.S. Supreme Court let stand Monday a lower-court ruling that telemarketers' rights to free speech are not violated by the government's nationwide do-not-call list.

Without comment, the justices rejected an appeal by commercial telemarketers against the lower-court ruling, which upheld as constitutional the popular program in which consumers can put their names on a list if they do not want to be called by telemarketers.

"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," the appeals court said.

The Denver-based appeals court overturned a decision by a federal judge who ruled the list unfairly discriminated against commercial speech.

The do-not-call list stemmed from regulations adopted by the Federal Trade Commission and the Federal Communications Commission. The program went into effect a year ago and subjects telemarketers to fines of up to $11,000 for calling a number on the list.

The American Teleservices Association, Mainstream Marketing Services Inc. and TMG Marketing Inc. asked the Supreme Court to hear the case.

The telemarketers argued that the list violated their commercial free-speech rights, that it unfairly did not apply to political and charitable solicitations, and that less restrictive regulations already allow consumers to block unwanted calls.

[John Galt]

I know this isn't your fault SirFozzie because the media misreports things this way, but your header is all wrong. The USSC did not "validate" or "uphold" the striking down of the do-not-call list. What they did was refuse to hear the case on appeal (they only hear a small number of cases a year, so it doesn't reflect on the merits). That has the effect of leaving the 10th Circuit decision in place, but that only affects states in that circuit. Further, nothing precludes the USSC from taking up another case on this issue in the future and ruling the other way (and they would be more likely to take it up if a Circuit split developed on the issue).

[GrantDawg]

I know this isn't your fault SirFozzie because the media misreports things this way, but your header is all wrong. The USSC did not "validate" or "uphold" the striking down of the do-not-call list. What they did was refuse to hear the case on appeal (they only hear a small number of cases a year, so it doesn't reflect on the merits). That has the effect of leaving the 10th Circuit decision in place, but that only affects states in that circuit. Further, nothing precludes the USSC from taking up another case on this issue in the future and ruling the other way (and they would be more likely to take it up if a Circuit split developed on the issue).
So that is the next step (filing in another Circuit)?

[John Galt]

So that is the next step (filing in another Circuit)?

Since the do-not-call statute is still law where you live, you would probably want to avoid a lawsuit (since the industry could win). Either way, this issue is probably far from being resolved.

[ISiddiqui]

Yep, there can be other circuits which say the Do-Not-Call List violates free speech. Then the SCOTUS may get involved in resolving inconsistent Circuit court judgments :D.

[Buccaneer]

Why is this a Federal matter?

[Masked]

Why is this a Federal matter?
Because the telemarketers are calling people in different states?

(just guessing, wouldn't interstate commerce be subject to federal regulations)

[Abe Sargent]

Why is this a Federal matter?

Interstate commerce clause in the constitution

-Anxiety

[Buccaneer]

Ok, I buy that. So here's the next question: Why should the Federal govt pass and enforce legislation in declaring something that was legal (but annoying, yes) to be illegal without any Constitutional grounds? What authority do they have to do that? And finally, why is the law being applied in a segregated manner and not apply to all "do not call" parties?

[ISiddiqui]

What authority do they have to do that?

Like the man said, regulation of interstate commerce ;).

[panerd]

Give me 1000 telemarketers a night over these bullshit Bush and Kerry recordings that get left on my answering machine every day while I am at work. What a load of crap that the government can tell telemarketers not to bother me, but the government still can.

[John Galt]

Ok, I buy that. So here's the next question: Why should the Federal govt pass and enforce legislation in declaring something that was legal (but annoying, yes) to be illegal without any Constitutional grounds? What authority do they have to do that? And finally, why is the law being applied in a segregated manner and not apply to all "do not call" parties?

The Commerce Clause effectively means the Feds have the right to anything affecting interstate commerce. There was a brief series of cases (started with Lopez striking down the gun free school zone law) under the Rehnquist Court that sought to limit the Commerce Clause reach, but given the interstate nature of the modern economy, the federal government has Constitutional authority to regulate all sorts of things.

As for why the law discriminates between do-not-call groups, that has to do with the way free speech doctrine has evolved. It is generally understood that commercial speech has less first amendment protection than other types of speech. This is largely because commercial speech serves a different function and because different types of speech operate in different ways in the commercial environment (ie you wouldn't want companies allowed to use all sorts of angry, potentially violent speech as long as it wasn't fighting words). Anyway, the industry is making the argument that this amounts to viewpoint discrimination and that it restricts commercial speech too much, but I'm not sure the law is on their side.

[SirFozzie]

"You may have the right to free speech, you do not have the right to make me listen"

[Buccaneer]

JG, thanks. The point I was leading to (in an awkward way) was the word you used, "discrimination". Just because the "people" demands it does not mean the federal govt should do something about it - unless it can be applied fairly and without prejudice. I still believe in a market-driven solution to this (as we do since 1) we receive no solicitation of any kind and 2) we are not on the federal list).

[SirFozzie]

Bucc: then you're a lucky bastard. We were getting 10+ a day at one point.

Market-Driven, simply did not work. Look at the following..

1) Telephone companies selling call-blocking features to customers, and then turning around and selling features to get around the call-blockers to the telemarketers.

2) It's no longer to scale, that one person=one call.. They have machines to make the call, and if someone actually answers the phone, they get transferred to a live person (since most do not answer, it allows them to mass call)

3) The telemarketing industry ignored any restrictions on it (such as times where they were supposed to call, not honoring "take me off your list" requests (they'd simply cross the caller off their list for THAT company, but if another company wants to use the telemarketers for a campaign, they would use that person in their lists.

Telemarketers quite frankly, brought all of this down on themselves.

[John Galt]

JG, thanks. The point I was leading to (in an awkward way) was the word you used, "discrimination". Just because the "people" demands it does not mean the federal govt should do something about it - unless it can be applied fairly and without prejudice. I still believe in a market-driven solution to this (as we do since 1) we receive no solicitation of any kind and 2) we are not on the federal list).

I think you are taking the word "discrimination" and assuming its means "unfair" or "prejudiced." Law is all about "discrimination" - discriminating murder from manslaughter, enforcable v. unenforcable contracts, etc. The fact that the law differentiates different kinds of speech does not strike me as prejudiced or unfair in anyway.

As for a market solution - I'm not sure how one would work in this area. This clearly seems like a case where the government has to do it or it won't get done. There is no incentive for companies to honor a list that is not enforcable. Companies for years have had lists (as required by a previous telemarketing act) for irate or upset customers, yet those numbers continue to be called. It is much easier for an industry to continue to call no-call numbers, try for a sale, and if not, nothing really is lost. The only way to stop unwanted solicitation is government (and probably federal government given that almost all telemarketing is interstate).

[Chubby]

Yet another reason I'm glad I only have a cell phone.

[Samdari]

Yet another reason I'm glad I only have a cell phone.

Isn't the protection from telemarketers due to cell phones companies not publishing their customers' numbers something that is about to go away?

Besides, even if that is not the case, if it is your only number, you have to give it to some businesses (unless you want to be homeless, or never acquire credit) which means it will eventually propagate onto telemarketers lists. It may take awhile, but the protection from telemarketers afforded by having only a cell phone is temporary.