Telemarketer sues, calling on Constitution

DAN RODRICKS

July 20, 1993|By DAN RODRICKS

Today's cause is so unpopular even I don't feel sorry for the guy.

Would you believe a businessman seeking $500,000 in damages because he wasn't allowed to use an automatic dialing machine to call thousands of potential customers at home?

You're all tears, right?

Would you believe this fellow has suffered "irreparable personal and pecuniary harm, business interruption, great economic loss" and even "emotional anguish"?

Those are just some of the claims made in a case filed in federal court in Baltimore by Dan J. Edwards through his attorneys, H. Thomas Howell, Una M. Perez and Barry S. Brown. The defendants are listed as the C&P Telephone Co. and the Maryland Public Service Commission.

The phone company and the PSC cracked down on Edwards starting last year, telling him he violated state law by making pre-recorded sales solicitation calls from his home. (Edwards PTC runs a one-man financial services business in Abingdon, Harford County.) Faced with the threat of losing his telephone service entirely, Edwards pulled the plug on his telemarketing machines.

He says his business profits are taking a big hit because of it. He has resorted to the old-fashioned, more expensive methods of picking up new customers -- mailing out solicitations, and printing and mailing a newsletter and newspaper inserts.

Edwards, who says he derived most of his business from computerized solicitations, has gone to federal court to fight C&P, the PSC and the relatively new state law that gave them the power to pull Edwards' plug.

Can I have a show of hands? How many of you feel sorry for the guy?

Just as I thought.

Cito Gaston has more sympathizers.

In a national Roper survey, 67 percent of the participants said they found calls "from people selling things" to be "very annoying," while 70 percent objected to calls "from a computer trying to sell something."

"If you ask people what is the single largest source of annoyance with their telephones, sales calls comes in first by a mile," said Mark Cooper, research director for the Washington-based Consumer Federation of America.

Cooper made that comment in March, right after the Supreme Court refused to hear a major test case of state laws on telemarketing. In so doing, the court gave Maryland and 41 other states permission, barring lower court challenges, to go on enforcing laws that ban or strictly curb automated, prerecorded commercial messages aimed at private telephones.

Under Maryland law, considered by consumer advocates one of the toughest in the nation, it is a crime to aim an automated commercial message at a telephone customer who has not agreed to receive such calls. Telemarketers convicted under the law can be fined up to $1,000 for the first violation and up to $5,000 for each subsequent offense.

The law says nothing about calls made by real, live people. Nor does it say anything about automated calls made on behalf of charities or political organizations.

And that's where we get to Dan J. Edwards's case.

The Maryland law is unconstitutional, his lawyers argue, because it not only inhibits Edwards's free speech but bans a certain kind of speech -- commercial speech. "In that it seeks to protect residential privacy, the [Maryland] law has a laudable goal," says Ms. Perez. "But the law is discriminatory."

It's here that, while you might not feel sorry for the guy, you might be able to see the legitimacy in Edwards's complaint.

In May, a federal court in Oregon found unconstitutional the 1991 federal statute that made similar prohibitions against recorded, auto-dial sales pitches. The court said Congress had not "met its burden of showing a reasonable fit between the selective, categorical ban on one form of commercial solicitation and the goal of enhancing residential privacy."

If commercial solicitations are annoying, aren't solicitations from nonprofits? Both cause the same kinds of inconveniences and problems. Both invade the shrinking "privacy sheds" of our lives. If one is not allowed, why is the other?

Hey, the simple answer is BAN THEM ALL!

But until that happens, I think -- and I hate to admit this -- Dan J. Edwards has a case. A cause even.

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