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Last Updated: Tuesday, 14 October, 2003, 11:18 GMT 12:18 UK
Banning the 'cold-callers'

Analysis
By Stephen Evans
BBC North America business correspondent

call center worker
Telemarketing firms may have to watch their step when cold-calling

Millions of Americans have been given the right to ban salespeople from calling them at home under a new telemarketing law that came into effect this year.

A very quiet but determined revolt has taken place in the United States.

Since the Boston Tea party, Americans have not been known for their revolutionary zeal, but now they've turned and revealed a defiant spirit.

This rebellion did not take place behind banners and barricades but in the peace of a myriad living rooms.

Something short of fifty million people here, roughly one in five of the adult population, have taken the trouble to register for the national do-not-call list.

Plague of callers

Americans are plagued by unbidden phone calls from persistent sellers - and they are very persistent indeed.

The phone always seems to ring as you come in through the door in the evening.

The telemarketers are tenacious, as they're bound to be for fear of losing their jobs.

Broadly put, the argument is - 'Advertisers have rights too'
They ask the second question even as you say you're not interested in whatever it is they're peddling, so firm politeness followed by hanging up is the only answer.

Until the register, that is.

The blocking system was set up purely as an act of altruism by the federal authorities - just because people wanted it.

Corporate lobbying

There was no corporate lobbying of the Bush administration for it.

If anything, companies were against it.

Every time a company calls someone on the list, a fine of $11,000 can be imposed
But it happened and it has been tremendously popular.

On one estimate, people were calling to register their phone numbers at a rate of 150 a second.

In the first three days, 13 million numbers were registered (only individuals, not companies can register to block callers, so we have to assume that means not far off 13 million individuals).

By the deadline at the beginning of this month, 48 million numbers had been registered - a true people's revolt on anyone's calculation.

Legal battles

There has been much argument by lawyers, with a string of court rulings on whether the register and the ban is unconstitutional or not.

The nub of the argument put by the industry is that it has a constitutional right to free speech, and by stopping companies calling people, that right is infringed.

Broadly put, the argument is: "Advertisers have rights too".

It is a finely balanced judgement.

There was a similar case in Cincinnati in 1993 when the Supreme Court ruled against the city authorities who had banned newspaper billboards on the streets when they featured adverts (which the city thought were ugly).

The news-stands, however, were deemed fine by the city when they featured those tease headlines to sell papers (such "War Breaks Out - Cincinnati Not Affected" - that kind of thing).

The Supreme Court did not agree with the distinction.

It upheld the First Amendment rights of advertisers to speak freely to passers-by through the medium of the billboard.

The city could allow both adverts and newspaper teases or neither - it couldn't permit one but not the other.

Tough

In the current similar but not identical case, the decision's gone the opposite way.

The United States Court of Appeals for the 10th Circuit in Denver ruled that forbidding calls by telemarketers did not violate their right to free speech.

The argument - which the court rejected - was that since political parties and charities were not barred from cold-calling, commercial cold-callers would be discriminated against if they were barred.

The result was that the Federal Trade Commission was given the go-ahead to enforce its don't-call-me register.

And the penalties are tough. Every time a company calls someone on the list, a fine of $11,000 can be imposed - enough to make any cold-caller break into a cold sweat.




SEE ALSO:
Americans say 'do not call me'
14 Jul 03  |  Business


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