David L.
Ben Franklin: “Only a virtuous people are capable of freedom. As nations become corrupt, they have more need of masters.”
-----Original Message-----
From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED]On Behalf Of Charles
Sent: Sunday, September 28, 2003 7:04 AM
To: 'The Sandbox Discussion List'
Subject: [Sndbox] Thanks to courts, my phone still belongs to telemarketers
Thanks to courts, my phone still belongs to telemarketers
FOOTNOTE
Last update: 28 September 2003
Two federal courts have given me a feeling I've never felt before. I feel sorry for Congress.
Oh, I know it will pass. But it makes my head hurt even describing so unfamiliar an emotion.
This condition was induced by last week's back and forth over the national no-call list. The no-call list was started last summer by the Federal Trade Commission. Put your name on the list and telephone solicitors can't call you. Unless it's charitable pitch, a political call or somebody you already do business with. Otherwise, if you're on the list and somebody gets you get up from your mashed potatoes to listen to AN ABSOLUTELY AMAZING HOME-REFINANCING OPPORTUNITY, the offender can be fined $11,000.
This annoyance is so widely and strongly felt that when an online site was set up to collect numbers, the servers crashed under the traffic. At one point, more than 100 numbers per second signed up. More than 50 million numbers were registered. Now, if I had a business that caused something close to half of American households to register with the federal government to ask that I please, please, please go away, I'd begin to feel a little unwanted. I might even question the way I do business.
Not the American Teleservices Association and the Direct Marketing Association. They went to court to force you to hear more about ABSOLUTELY AMAZING HOME-REFINANCING OPPORTUNITIES! Preferably at 9 a.m. on weekends.
First, a U.S. district judge in Oklahoma ruled the Federal Trade Commission lacked Congress' permission to create and enforce the list.
Maybe I'm being simplistic, but if Congress voted the FTC money to create the no-call list, wouldn't seem a good bet it meant for the FTC to create a no-call list? Now you know why I'm not a lawyer.
But it didn't matter because within a day, Congress passed a bill declaring it really, really meant for the FTC to be doing this.
Which would have solved everything except another court ruled. It struck down the list on First Amendment grounds. The court said because the list exempted charities and political calls, it unlawfully discriminated against certain kinds of speech.
Yet, one of the reasons Congress made such distinctions was to meet First Amendment objections.
The court created a weird Catch-22. The only way to ban calls is to ban all calls regardless of content. But if you ban political calls, charitable calls and religious organizations' calls, you're banning the kind of speech most protected by the First Amendment.
Bottom line: "Good morning homeowner, I want to tell you about ABSOLUTELY AMAZING HOME-REFINANCING OPPORTUNITIES! And nobody can stop me. Mwa-ha-ha-ha!"
So much for privacy rights.
So amazingly, I find myself feeling bad for members of Congress. They actually tried to do the right thing. They actually listened to an angry public. They actually came together to pass a bill quickly in response to public outcry. And it made no difference.
I think Congress can create a no-call list for the same reasons government can ban sound trucks from circling your house or forbid people from prying open your bathroom window to tell you about ABSOLUTELY AMAZING HOME-REFINANCING OPPORTUNITIES! There is a clear privacy interest involved.
A person's home is not a public sidewalk. It's not a public forum. Something I'm sure higher courts will recognize .
If not, I suppose I don't really need a telephone all that much.
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