Today's Opinions, Tomorrow's Reality 

Constitutional Inconveniences
The Misguided Fight Against Telemarketing

By David G. Young

Washington, DC, September 30, 2003 --  

Americans' overwhelming hatred of telemarketers boiled over in the past week, as 50 million people on the Federal Trade Commission's new do-not-call list demanded that it be implemented on schedule. In the face of such an overwhelming populist movement, Congress and the President went into pander overdrive to ensure placation of the angry masses.1

Two separate federal courts struck down the do-not-call registry last week, deferring to such quaintly old-fashioned ideas as the law and the Constitution. The first decision, ruling that the FTC did not have the legal authority to implement the list, was easily sidestepped. Congress simply passed a law explicitly granting authority, and President Bush yesterday held a campaign-style signing ceremony to prove just what popular things a politician can do.2

Just one problem -- the second court ruling from last week still stands. Colorado District Judge Edward Nottingham said the FTC's list is illegal because it violates the First Amendment to the Constitution. In a 34-page decision, Nottingham made a convincing argument that the FTC's list amounts to a "prior restraint" of free speech based on content -- the FTC has decided that evil capitalist "commercial" speech is bad, but altruistic "charitable" speech is good.3 Non-commercial speech is not regulated by the FTC's do-not-call list.

The angry mob was quick to denounce the Judge's ruling. Countless people threatened to punish Judge Nottingham with 50 million dinnertime calls -- scolding him for serving a court of law instead of a court of public opinion. By ruling on a First Amendment issue, Nottingham had effectively barred any action by the mob and their pandering politicians other than an effort to amend the Constitution.

But Nottingham did make one mistake. While he ruled to explicitly forbid the FTC from implementing its list, he did not have the foresight to bar all federal agencies from doing the same. Thus, those pesky bureaucrats have found a way to avoid penalty for violating Americans' civil rights. The FTC has worked out a deal with the Federal Communications Commission to have the sister agency implement the list on schedule.4 Presumably, if another law-abiding judge rules against the FCC, the bureaucrats will just hand over telemarketing regulation to the U.S. Fish and Wildlife Service.

What makes these episodes so infuriating is the way politicians have manipulated the public. People mistakenly believe that the do-not-call list will be a panacea allowing them to have a peaceful dinner without interruption. But how will they feel when the very congressman who pandered to their desires calls them up during dinner to ask for their vote? Think the do-not-call list will prevent it? Wrong. Political campaigns are exempt from the do-not-call list, as are all non-commercial telemarketers.

Had politicians and bureaucrats been less concerned about grandstanding and empire building, they could have solved the problem of unwanted calls with technology instead of regulation. Verizon, the East Coast's predominant local phone company, already offers a service called Call Intercept, allowing unidentified calls to be screened before ringing a customer's phone.5 A more robust version of this service could easily be implemented -- with the help of more constructive government officials -- that would put the power to screen speech in the hands of individuals rather than government bureaucrats.

Aggressive telemarketing, like email spam, is more than an annoying problem. It is economically destructive activity. By flooding email and voice mailboxes with unwanted ads, ill-mannered sales organizations are destroying the utility of these communications media. But because technology created the problem -- with automatic dialers and email programs -- it is technology that must be the solution. Outlawing activities does not automatically prevent them from happening. Although the government's do-not-call list may reduce calls, it will not stop them. Similar new laws regulating email spam will prove even less effective.

If the American public wants solutions to these problems, they must put pressure not on politicians who simply nibble at the edges of civil rights, but on Internet and telephone service providers who are in a position to create real, workable technological solutions. In an atmosphere of such public anger, however, it may be unreasonable to expect cooler heads to prevail.


1. Washington Post, Suits continue, But Phone Calls Should Subside, September 30, 2003

2. Associated Press, FCC Steps in to Enforce Do-Not-Call List, September 29, 2003

3. U.S. District Court for the District of Colorado, Memorandum Opinion and Order, Mainstream Marketing Services, Inc. vs. Federal Trade Commission, September 25, 2003

4. Associated Press, Ibid.

5., Call Intercept Brochure, September 2003