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When an idea is as wildly
popular as the national do-not-call list, it’s a safe bet the plan
is either absolutely right or horribly wrong. This time the smart
money is on “right.”
After a federal judge ruled
the Federal Trade Commission couldn’t enforce fines on telemarketers
who call the 50 million Americans who signed up for the list,
Congress sprang to action. The House of Representatives, which
probably couldn’t agree on the color of the sky, voted to give the
FTC the necessary power with an incredible 412-8 margin. The
Senate, which probably could agree on the color of the sky but would
be wrong, approved the measure the same day by a vote of 95‑0.
Before the sound of
backslapping had faded from the halls of Congress, a second judge
ruled the do-not-call list violated the sacred First Amendment right
of every American to interrupt every other American’s dinner to
peddle time-share vacation resorts. This short-circuited an attempt
by the Federal Communications Commission to take over enforcement
from the FTC.
The Direct Marketing
Association, which The Washington Post says represents 80 percent of
the companies that make sales calls, is urging its members to
voluntarily respect the do-not-call list until the confusion is
sorted out. How long that might be is hard to estimate in terms of
time; in legal fees I suspect it will take about a quarter billion
dollars. Not quite tobacco money, but a gold mine for attorneys
just the same.
I have never bought anything
from a telemarketer and wish no one would, though I confess I once
tried. It was a weak moment: Fed up with my dialup Internet
service, which seems to dribble out the bytes one at a time, I had
been waiting for high-speed service to come to my area. Then one
night, before I could hang up, a telemarketer uttered the three
little letters I had longed to hear: “DSL.”
I felt dirty but I bought.
Then I waited. A week, then two, then three. When the promised
modem did not arrive I contacted the company, only to be told DSL
Internet service was not really in my neighborhood. I have had two
more such calls, to find there is still no DSL. If it ever does
come I have vowed not to buy it from a phone solicitor.
But does the Constitution
guarantee them the right to ask? Is free speech abridged if one
cannot electronically invade strangers’ homes to sell health club
memberships?
There is a big difference
between a right to speak and a right to be heard. We are free to
stand on street corners and shout anything we like but can’t follow
people into their homes to continue the spiel in their living
rooms. One can write anything one desires, but can’t make
newspapers print it. I know; I’ve tried.
Some argue telemarketing is
no different than commercials on television; you don’t own a TV for
that purpose but ads beam into your home anyway. This logic is
flawed because advertisements are a passive intrusion that comes at
a time you have chosen to watch free programming, or cable
television that includes ads.
The better comparison would
be if advertisers sent a signal to turn on your television using its
remote control frequencies, then peppered you with ads at every hour
of day. I write this at the risk of giving the wrong people a bad
idea because I have no doubt it could be done.
Telephone service is
something you buy for your convenience, not so it can be hijacked by
sales people. There is no right to be heard and we should resist
any judge who tries to hallucinate one.
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