Fixing the Do Not Call List: Do Not Exempt

After a weeklong circus that left most Americans scratching their heads in confusion, the federal “Do not call” list (search) went into effect on Oct. 1. It was the California recall of regulatory policy, involving two district courts, two appeals courts, two alphabet-soup agencies and Congress. The only thing missing was Gary Coleman.

By week’s end the rules were being enforced by the Federal Communications Commission as a sort of adoptive parent for their original creator, the Federal Trade Commission. Adding to the confusion: A court has barred the FTC from handing over the actual list to its sister agency, leading FCC Chairman Michael Powell to plead with telemarketers to give him a copy, any copy, of the list.

Aside from lawyers, the big winners amidst all this turmoil have been politicians. Few have missed the chance to show their solidarity with beleaguered householders. “Americans are frustrated that they cannot have peace and quiet simply because they have a phone number,” intoned Sen. Ted Stevens, (search)R-Alaska, in a typical statement, “and I am happy to give it to them.”

Yet, the resolve to defend dinnertime peace and quiet apparently doesn’t apply to politicians’ own telemarketing efforts, which are exempted from the rules. And it is these very exemptions, along with others, that now threaten the rules politicians tell us they are fighting to save.

The current do-not-call turmoil was triggered on Sept. 23, when a federal court in Oklahoma ruled that the Federal Trade Commission was not authorized by law to enforce such regulation. Congress sprang into action, passing legislation almost literally overnight to fix that glitch.

But before the congratulations started, a second federal court, in Colorado, ruled the rules illegal -- this time on constitutional grounds. But that case was against the FTC only, not the FCC, which promptly stepped in to take over the enforcement job. However, it will not be able to continue to do so if the Colorado decision stands on appeal.

That decision by District Court Judge Edward Nottingham was surprisingly straightforward. Nottingham found nothing wrong with the concept of do-not-call. Rather than directly limit speech, the reasoning goes, such a system can enable consumers to decide for themselves what kind of speech they want to hear.

In that sense, do-not-call is very similar to postal laws that enable consumers to stop delivery of mail from specific sources. The Supreme Court upheld that law more than 30 years ago, with Chief Justice Warren Burger (search) finding that “a mailer’s right to communicate must stop at the mailbox of an unreceptive addressee.”

But, Judge Nottingham pointed out, there is one crucial difference: The postal rules allowed recipients to block any mailer they found offensive. Not so the do-not-call rule. That rule only applies to telephone solicitations intended to make a sale for profit -- excluding political and other non-profit fundraising. This is the fatal flaw, the judge concluded. Rather than allow consumers full freedom to decide for themselves, regulators had discriminated in favor of preferred types of calls. And, conveniently enough for politicians, those preferred calls included their own.

These exempted calls are a significant part of the telemarketing blizzard -- the rules cover only 40-60 percent of calls. And there’s no reason to believe uncovered calls are less annoying to consumers. A call at dinnertime from a congressman’s re-election committee or from the Police Benevolent Association can be just as unwanted as a commercial call.
But aren’t political and other non-profit messages more important to society than mere commercial calls? Perhaps, but not necessarily. The key point is that that’s a decision that can be made by individuals themselves.

The ultimate legal fate of the do-not-call list is uncertain, as Judge Nottingham’s decision is sure to be appealed. Even if the judge is ultimately overturned, the process could take years. Yet, politicians could end doubt by swiftly subjecting all telemarketers -- including their own -- to the “do not call” rule.

This needn’t mean consumers have to be presented with an all-or-nothing choice. They could be given the option of blocking any combination of commercial, non-profit or political calls, based on their own preferences. By thus increasing consumers’ ability to choose for themselves, legal problems and unwanted calls both could be minimized.

Will the politicians take such steps? Judge Nottingham has placed the call. It may not be answered.

James Gattuso is a research fellow in regulatory policy at The Heritage Foundation , a Washington-based public policy institution.