Posted 6:22 AM by Blah blah

Problems with the Do-Not-Call List (Consumer Law)

As you probably know, U.S. district Judge Edward W. Nottingham decided this week that the government's "do-not-call" list, a scheme to stop telemarketers from bothering us, was illegal.

50 million Americans, including I, have already signed up on the list, which tries to forbid people from selling by phone to anyone on it. Businesses who do face a fine of up to $11,000.

However, you may not know why he rejected the list. The judge actually makes a great point. His problem is with this part of the Do-Not-Call Registry:

"Q: If I register my number on the National Do Not Call Registry, will it stop all telemarketing calls?

A: No. Placing your number on the National Do Not Call Registry will stop most, but not all, telemarketing calls. You may still receive calls from political organizations, charities, telephone surveyors or companies with which you have an existing business relationship."

Judge Nottingham's point: why should we make an exception for calls from political groups and charities, when they are just as bothersome to us? Why make a distinction here between commercial speech and political speech? That violates the First Amendment.

I think most people would agree that we'd like the government to block as many calls as possible, whether people call for "socially beneficial reasons" or not!

To Soo the lawyer: what do you think of the judge's ruling?

Do-Not-Call Case Spotlights Vagueness of Commercial Speech Law (Washington Post):
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Nottingham voided the [do-not-call list] because it offered consumers the option of banning unwanted calls from for-profit businesses but not calls from charitable organizations, which, the judge reasoned, are just as intrusive. This "content-based" discrimination between two otherwise indistinguishable forms of speech, Nottingham ruled, violated the First Amendment.

Yet the FTC created the exemption for charitable calls in the first place because it believed that the First Amendment required it to do so....

Such is the legal hall of mirrors known as commercial-speech doctrine, the body of Supreme Court precedent that has perplexed judges, lawyers and academics for years...

The Supreme Court has long recognized a distinction between political and artistic speech, which are entitled to the highest degree of protection from government regulation, and commercial speech, defined as statements about the price and quality of goods or services. Commercial speech is given less protection because the government needs to protect consumers from false advertising and other forms of fraud.

But that seemingly clear distinction has proved increasingly fuzzy in an age of socially aware corporate communications, such as a recent campaign by clothing retailer Benetton that called attention to the plight of prisoners on death row....

Although most telemarketing calls are commercial calls, Nottingham noted, the FTC registry...was discriminatory because, in terms of invading privacy, there is no difference between a charitable or other noncommercial call and a profit-making one.

"For government to decide that people who don't want to be disturbed by political or charitable calls have less worthy interests than people who don't want to be disturbed by commercial interests is the worst kind of line drawing," said Laurence H. Tribe, a professor of constitutional law at Harvard University.