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An Attack on 'Do Not Call'

March 15, 2004

The hard-liners of the telemarketing industry should drop their appeals against the federal do-not-call list. Consumers love the list, cherish their quiet evenings and won't stand for a return to cold-call mania.

There are good guys in this story, such as the members of the Direct Marketing Assn. -- the larger of two industry groups -- which this month withdrew from a lawsuit that challenges the legality of the federal government's popular do-not-call registry. Families that have come to enjoy the supper hour without a home-refinancing pitch can thank the nation's largest direct marketing organization for embracing the old saw about the customer being right.

It had to be a painful decision. Telemarketers generated $100.3 billion in sales during 2002, the year before the Federal Trade Commission began logging numbers into its do-not-call registry. A hefty percentage of profits came from now-restricted cold calls. The association's 4,700 member firms have agreed to find alternative means of growing their businesses that don't clash with the registry's goal of stopping for-profit companies from making cold calls to consumers. (Yes, that includes the newspaper industry, which had lobbied unsuccessfully to win an exemption from the FTC registry.)

A smaller telemarketing trade group, the American Teleservices Assn., isn't giving up. It says it still intends to ask the U.S. Supreme Court to review a federal appeals court decision that favored the do-not-call registry. The group argues that the 1st Amendment includes protections for what's called commercial free speech and that those rights "are being unduly trampled under the guise of consumer protection." It also argues that the registry is discriminatory because it limits for-profit outfits but lets charities and political parties continue dialing.

The association is on thin legal ground with its argument that free speech includes making cold calls to folks who have used the federal registry to tell telemarketers that they don't want to be bothered. The trade group also should recognize the danger in angering the consumers who have registered 57 million phone numbers with the FTC in less than a year. The telemarketing industry stands to lose much more than a legal case if its tough guys pursue this consumers-be-damned legal challenge.

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