Argh! Just when Congress was moving to fix the problems in the original legislation that created the national Do Not Call list, another federal judge has put the kibosh on it by ruling it in violation of the First Amendment rights of telemarketers.
[U.S. District Judge Edward] Nottingham found the do-not-call plan unconstitutional on freedom of speech grounds because it allows charitable organizations to continue to call numbers on the list, while commercial firms were barred.
"There is no doubt that unwanted calls seeking charitable contributions are as invasive to the privacy of someone sitting down to dinner at home as unwanted calls from commercial telemarketers," Nottingham wrote. By exempting charitable solicitations, the FTC "has imposed a content-based limitation on what the consumer may ban from his home ... thereby entangling the government in deciding what speech consumers should hear."
"The First Amendment prohibits the government from enacting laws creating a preference for certain types of speech based on content, without asserting a valid interest, premised on content, to justify its discrimination," the judge said.
I grant that the exception carved out for charities, while well-intentioned, does throw a spanner in the works, a distinction that also gives Writerrific pause. I'd rather see a second do-not-call list for charities than see the telemarketers' list die.
It occurs to me that we could largely avoid this problem if Caller ID were more robust and if telemarketers were forbidden from blocking their outbound number. I don't like ignoring calls that say "unknown caller" because calls from my parents come in that way for some odd reason. Until calls from my folks display properly and/or until telemarketers are forced to display theirs, I'm left to guess when to answer and when to let it roll to voice mail.
(Wasn't forcing telemarketers to display Caller ID info part of the recent FTC rule changes? Did that go through?)
A friend recently asked via email to a mailing list I'm on if anyone knew of an answering machine that could be programmed to respond to calls based on the incoming number. I can't help but think that such a device, which sadly would depend on better Caller ID service, would be a big seller. I know I'd buy one.
(Yes, I know that some of the regional Bells offer a Privacy Manager service that forces unknown callers to announce their names before a call goes through. It's not available to me, I'd rather pay once for a machine than every month for a service, and it suffers from the same annoyances as challenge-response spam filtering.)
I've seen some comments that one response people will have to unfettered phone spam is to give up their landline and go cellular. It's true that telemarketers currently avoid calling cellphones as a rule, partly because there's no good directory for them and partly because many calling plans include charges for incoming calls. Between predictive dialers and an avalanche of new flat-rate calling plans, I don't see either of these as being long-term disincentives to telemarketers. Either we can control who calls us or we can't.
Finally, I agree with Calpundit that the DMA's oft-repeated line about "two million jobs lost" if a national Do Not Call list were implemented is baloney. Whatever may happen with the legal wrangling, does anyone honestly believe that these jobs are not slated for offshoring in the near future anyway? The Direct Marketing Association is shedding crocodile tears.Posted by Charles Kuffner on September 26, 2003 to Legal matters | TrackBack