Yet More About the Do-Not-Call-List

Surprise, surprise, the FTC is going to appeal Judge Nottingham's decision striking down the do-not-call list program.

I had a look at the Congressional Record to see what if anything a court might mine from it. [Cites to are not permanent so this is hard to link. Look for the Senate – September 25, 2003 at page S11957 and the House at H8916.]

The key point here is that there is some stuff a court willing to work with legislative history (itself a controversial issue) could use. But there's not a huge pile of it.

Senator Pryor is maybe the key here. He mentioned that there is telemarketing fraud, and this will reduce it, which a very determined court might use to suggest that the 'fighting fraud' exception to the general limit on content discrimination could be justified here. In fact, he said it in two separate speeches—and the second, briefer one may be the one that provides a hook to save the bill: “Mr. President, we all know that fraud can be very much a problem when it comes to telemarketing, but we also know a Do Not Call registry is a very positive consumer tool against fraud. By that I mean if you signed up for the National Do Not Call plan and you still get a call, you know something is up. That ought to be your first tip that something may be amiss with this call.” That should do it.

Other than that, there isn't that much. Several Representatives and Senators said conclusory things like 'there is no First Amendment issue here.' That won't do anything. Representative Holt said,

Telemarketers have, like everyone else in this country, the right to free speech. They have the right to say what they want. What they don't have is the right to force Americans to listen to their sales pitches.

Americans, on the other hand, should have the right to a little peace and quiet. They should have the right to not have to get unwanted advertising pitches over the phone during dinnertime.

Telemarketers already have the tools they need to exercise their right to free speech—they have autodialing computers, prerecorded messages, phone registries, and legions of operators. In creating the Do-Not-Call Registry, the FTC was merely trying to provide consumers with the power to truly exercise this right. The Do-Not-Call Registry is just one simple, effective tool that will give consumers the ability to exercise their right to a little peace and quiet.

Senator Hollings did say the Americans “want to protect their private medical and financial information and protect their children from indecent advertising,” although it's somewhat unclear to me what the first part of this has to do with the subject.

Senator Dorgan could be read to say that sales calls are more annoying than other types, when he said, “There may be some people who are terribly lonely and whose phone seldom rings except to have an advertiser of a credit card or a long-distance service call during meal time just wanting to visit about their product. There may be some people who welcome those calls, just talk the ear off these telemarketers. I can't say that for sure, but this country is full of very interesting people. As for me and for most of the American people, getting a telephone call in the middle of a meal or getting a telephone call at all hours of the day and night to have someone tell us that we really need a new long-distance service or a preapproved credit card gets a little annoying. Unsolicited phone calls are an intrusion on the phone line that most American people pay every month to have in their home.”

Meanwhile, here's the offical text of the bill as passed by both houses:

To ratify the authority of the Federal Trade Commission to establish a do-not-call registry. (Enrolled as Agreed to or Passed by Both House and Senate)

One Hundred Eighth Congress
of the
United States of America
Begun and held at the City of Washington on Tuesday,
the seventh day of January, two thousand and three

An Act
To ratify the authority of the Federal Trade Commission to establish a do-not-call registry.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,


(a) AUTHORITY– The Federal Trade Commission is authorized under section 3(a)(3)(A) of the Telemarketing and Consumer Fraud and Abuse Prevention Act (15 U.S.C. 6102(a)(3)(A)) to implement and enforce a national do-not-call registry.

(b) RATIFICATION– The do-not-call registry provision of the Telemarketing Sales Rule (16 C.F.R. 310.4(b)(1)(iii)), which was promulgated by the Federal Trade Commission, effective March 31, 2003, is ratified.

Speaker of the House of Representatives.

Vice President of the United States and

President of the Senate.

There was a slightly amusing moment in the House when one Represenatative said that he knew they were sometimes attacked for voting on bills they had not read. Well, this time he was going to read the whole (tiny) bill to the chamber, so there would be no doubt everyone knew what it said.

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