Do-not-call list debate tests idea of letting freedom ring

October 02, 2003|By MICHAEL HIMOWITZ

WHEN ADVANCES in technology collide with the Constitution, the fireworks are always interesting.

For example, Congress has tried three times to regulate porn on the Internet. The Bush administration wants to use the Patriot Act to sniff through our e-mail, listen to our phone calls and browse our library records. The Transportation Department wants to create a massive computer database with information on every place we've traveled, everything we've bought, everybody we've called - maybe everything we've eaten.

All of these efforts have generated intense debates of high principle designed to resolve conflicting interests that everyone sees as legitimate - free speech vs. protection of children, personal privacy vs. national security.

So, with such weighty issues in the air, what's the big constitutional fuss over a national do-not-call list? Does anybody with a brain think that a telemarketer has a constitutional right to pull you out of the shower to hear a pitch for a timeshare in Aruba?

The people who pay for 50 million phone lines have already voted "No." They've put their numbers on the nation's official Do Not Call Registry, which was supposed to take effect yesterday - until a federal judge in Denver ruled it unconstitutional because it specifically excludes charities from the ban on unsolicited calls.

It was a gutsy decision. Apart from the 5.4 million U.S. telemarketing workers who make a living by annoying the other 275 million, the industry doesn't have many champions.

"While many good people work in the telemarketing industry, the public is understandably losing patience," President Bush said Monday as he signed a bill that eliminated a separate legal challenge by giving the Federal Trade Commission explicit authority to maintain the do-not-call list.

Mr. Bush is no friend of the consumer and certainly no friend of regulation - but he knows the popular will.

With the judge's decision throwing the effort into limbo - possibly for a year until the Supreme Court rules - it's worth asking how we got to this point.

For almost 90 years after Alexander Graham Bell made the first call, consumers used the telephone largely to reach outward - to family, friends and neighbors. Usually, they didn't reach far, because long distance calls were expensive.

Advertisers who wanted to reach customers mailed out millions of brochures and catalogs or sent out armies of door-to-door salesmen.

But with the spread of phone service to almost every home and the arrival of bulk, long-distance calling rates in the 1960s, fledgling telemarketing firms not only had an audience, but also the ability to reach it efficiently through high-volume call centers.

"Predictive" dialing software, which arrived in the 1980s, eliminated telemarketers' last problem - too much time wasted on busy signals and people who weren't home.

It called hundreds of numbers simultaneously and made sure a phone had been answered before it put a salesman on the line. True, it infuriated consumers who only heard dead air when the timing was off. But it increased telemarketers' productivity - and consumer resentment - by orders of magnitude.

By the time the public got fed up and demanded help, telemarketers were pumping out more than 100 million calls a day. The friendly home phone had become a breach in the castle wall assaulted by a persistent army of annoying invaders.

Enter the do-not-call list. From a functional standpoint, it does nothing more than give consumers an electronic version of that old "No Soliciting" sign.

However, when the government tries to tell people whom they can talk to, that pesky First Amendment kicks in. And over the years, the courts have handed down a complex set of rulings that give varying levels of constitutional protection to different types of speech.

For example, political speech is almost completely protected - that's why politicians were exempted from the do-not-call list. Commercial speech, on the other hand, can be regulated if there's a compelling public interest and the limitations are narrowly targeted to it.

"Charitable" speech falls somewhere in between, and that's what the American Teleservices Association chose to attack in a lawsuit to invalidate the do-not-call list.

In his decision granting a summary judgment against the FTC, U.S. District Judge Edward W. Nottingham ruled that in regulating speech, the courts don't allow distinctions to be made based strictly on the content of the speech (such as a sales pitch vs. a fund-raising request). And if the government's aim is to protect consumers' privacy, he wrote, exempting charitable calls is illegal because they're just as invasive as credit card pitches.

Members of Congress could solve the problem by banning charity solicitations to numbers on the do-not-call list. And they could commit mass suicide - same thing.

The telemarketers know that.

So, regardless of how much we hate telemarketers, there are real constitutional issues here, and we're stuck till the Supreme Court chooses sides. Democracy sure is messy.

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