September 24, 2003


Court Hangs Up On 'Do-Not-Call' (CBS News, Sept. 24, 2003)

A federal judge has ruled that the Federal Trade Commission overstepped its authority in creating a national do-not-call list against telemarketers.

The ruling came in a lawsuit brought by telemarketers who challenged the list, comprised of names of people who do not want to receive business solicitation calls. The immediate impact of Tuesday's ruling was not clear.

The list was to go into effect Oct. 1. Some 41.7 million people have signed up.

U.S. District Judge Lee R. West sided in favor of the plaintiffs, U.S. Security, Chartered Benefit Services Inc., Global Contact Services Inc., InfoCision Management Corp. and Direct Marketing Association Inc.

The judge found that Congress had never given the FTC specific authority to create such a list or enforce penalties against violators.

Under a 1991 law, the FTC was allowed to create a list of people who did not wish to receive telephone solicitations. A separate 1994 law called on the FTC to prohibit abusive or deceptive telephone solicitations. The judge essentially ruled that the authority in the second law does not apply to the list in the first one.

This is probably inevitable as to court precedents but nonsense as to the intent of the First Amendment. Only political speech--that speech intrinsic to the functioning of the Constitutional scheme itself--should be protected at such a high level. If Congress, the Executive and forty million Americans are all agreed that the do-not-call list is allowed by the Constitution, then it is.

Posted by Orrin Judd at September 24, 2003 1:05 PM

Anybody have the judge's phone number?

Posted by: J.H. at September 24, 2003 1:44 PM

Ask Dave Barry.

Posted by: jim hamlen at September 24, 2003 2:23 PM

From reading the judgement, it appears that the court didn't consider the consitutional issue important (at least it was not the "primary and dispositive" complaint); rather it held that Congress had not properly given power to create an enforced do-not-call list to the FTC.

That may or may not be a bad decision, but it doesn't appear to be based on accepting (at least primarily) a First Amendment ban on such a list.

Posted by: Sigivald at September 24, 2003 3:04 PM

Where is that clear boundary line separating political speech from not political speech?

Posted by: Jeff Guinn at September 24, 2003 3:12 PM

Speech is either free or it isn't. There is no way to define "political" speech apart from the other kinds.

However, if we have free speech, we are free to tell a telemarketers to buzz off -- see D. Barry.

Posted by: Harry Eagar at September 24, 2003 3:15 PM

Hi, Mr. Eager/Guinn?

I'm calling from Garden State Brickface and Stucco and we're offering a free quote to homeowners on redoing your siding.

Posted by: oj at September 24, 2003 3:24 PM

Judge Lee R, West
Office webpage:
Home info on the web: t.y=0

DMA(Direct Marketing Ass)
Phone: 212-768-7277
DMA president extension: 1604

American Telemarketings (ATA)at
- 1-866-500-4272

Posted by: Fronigah at September 24, 2003 4:02 PM

It seems likely the judge interpreted the law correctly and the proper solution is for Congress to enact a law, as it's supposed to do.

I don't see where Constitutional free speech issues arise. Whether telemarketers have a right to ring a bell in a person's home signaling they want to talk, or homeowners have a right not to have the bell rung without their consent, is a property rights question, and either allocation of rights is consistent with the Constitution.

Posted by: pj at September 24, 2003 5:14 PM

Tell 'em to hire a holl.

Posted by: Harry Eagar at September 24, 2003 5:50 PM

The ringing of your phone is a property rights question?

I know that the government and home owners can't stop you from canvassing door-to-door, having done it for political campaigns and lobby groups.

Posted by: oj at September 24, 2003 6:25 PM

As I hate administrative agencies much more than I hate telesellers, I'm thrilled with this decision.

Posted by: David Cohen at September 24, 2003 6:41 PM

Why should the FTC pre-qualify prospects for the telemarketers at taxpayer expense? Let them waste their time and money calling me and getting abused.

Posted by: triticale at September 24, 2003 8:01 PM

oj -

It's only a matter of time before technology is out that lets callers control who can call them, and requires strangers to send email asking to be added to your allowed-to-call list.

If we don't do that, imagine when 6 billion people all have phones, and Microsoft has introduced the first robot telemarketers. We'd never have peace.

And, yes, as James Madison and Ronald Coase said, property is really the right to take an action. Either telemarketers have property in their right to call you, or you have property in your right to block them from calling. Economic efficiency requires that that right be tradable (so that if you own it, telemarketers could purchase the right to call you; or if they own it, you could purchase blissful quiet); but in the absence of trading, the distribution of rights is rather arbitrary. Our right to speech is also property, but it's not at all clear to me that ringing a bell in your telephone is a speech act.

Posted by: pj at September 24, 2003 8:23 PM

So if you can't block someone from coming up and knocking on your door, why can you block them from the far less intrusive phone call?

Posted by: oj at September 24, 2003 8:28 PM


Actually, I can block someone from coming up and knocking on my door. I can:

1. Put up a "No Solicitors" sign
2. Add a "No Trespassing" sign.

And, as a backup, add a large, easily riled dog that won't listen to reason.

Posted by: Jeff Guinn at September 24, 2003 9:23 PM

Bingo, Jeff.

The issue of private right has already been settled by the Direct Marketing Assoc. do-not-mail list. No teeth but modestly effective.

The only question is, whether the state police power can be used to impose barriers and penalties to the obnoxious.

This is not so clear. Obviously, Evangelicals arre against privacy rights and personal space, because take away their obnoxious behavior and they have nothing left.

Do I have a legal right not to listen to harangues? Don't know, but it might be dangerous to find out in person.

Posted by: Harry Eagar at September 24, 2003 9:33 PM


Those signs have no legal meaning. Solicitors can still knock. The dog will just get you sued.

Posted by: oj at September 24, 2003 9:45 PM

I never understood how the Don't Call Law ever got passed in the first place. Seems to me the telemarketers and their lobby would have waaaayyyyy too much money to ever let this one through, [ir]regardless of the will of the people.

(The law itself seems OK with me--not because 40 mill say so, that doesn't hold water--but I should have a right to privacy. For example, those nogoodnik kids with their crazy clothes and "rock and roll" music had darn well better stay out of my lawn. Darn well.)

Posted by: Jimmy at September 24, 2003 10:24 PM

Jimmy! You closet oligarch! Siding with the elitist judges against the masses. There's hope for you yet.

Posted by: oj at September 24, 2003 10:27 PM

Someone comes on my property despite the signs, then gets bitten by the obvious dog.

Where you will find the jury to side with the plaintiff?

Never mind that. How about an opinion from a lawyer. Peter B, are you listening?

Is a No Trespassing sign sufficient to keep people off your property (there seem to be plenty of them in Michigan)?

If not, would my standing on my property telling an evangelist to stay the heck off be sufficient?

And, if so, why wouldn't a sign I posted be able to speak for me?

If not, what ability do I have as a homeowner to keep people off my property?

Posted by: Jeff Guinn at September 25, 2003 7:20 AM

What would the founders do? They'd support
do not call.

The phone is my property. I pay the bill for
the service. I should be able to make a
blanket pronouncement over how others can use it.

The phone is not like a television (a oneway
conduit form the outside world). It is first and
formost a means of critical communication for my
family and I.

It's a property rights issue. Telemarketers can
pay for infomercials if they want to contact people.

Posted by: J.H. at September 25, 2003 9:09 AM


You don't even own the phone line running into your house.

Posted by: oj at September 25, 2003 9:13 AM


Your right that the issue is not strictly ownership considering
that phone lines are public utilities created
through sanctioned monopolies (it does get a bit

But are you suggesting that a homeowner has
no contractual priviledge (if that is more suitable) to the use of the phone in his home?

Can I not exclude some sorts of uses. And doesn't
the phone company (owing to its priviledged status) as a sole provider cooperate to some

Posted by: J.H. at September 25, 2003 10:02 AM

I'm suggesting that by installing the phone and maintaining a public number you've made certain concessions of your prior rights. Over and against this you have people who seek to contact you to express political ideas. You need not listen to them, but you can't really restrain them from approaching you. They've constitutionally protected speech rights where there are no comparably enshrined property rights. Commercial speech should be treated differently.

Posted by: oj at September 25, 2003 10:10 AM


You do in fact own the line running into your house. The demarc point is in the telco junction box.

You are right that, in the absence of direction otherwise, that having a phone includes making certain concessions regarding prior rights.

But posting the telephonic equivalent of a no-trespassing sign changes things (as does having an unlisted number).

Your contention that I can't constrain people conveying political ideas from approaching me is bizarre. On public property that is clearly true, but I certainly may exclude anyone I choose for whatever reason from my private property.

Or are you contending that if a Howard Dean canvasser stops by for a midnight chat, I must let them in, but may put my fingers in my ears and chant "I can't hear you" until they stop talking?

Posted by: Jeff Guinn at September 25, 2003 12:49 PM


Yes, if a Howard Dean canvasser is in your neighborhood he is entitled to approach and knock on your door. Your town can have rational restrictions, no canvassing after 9pm for instance, but they can't stop the speech entirely.

Posted by: oj at September 25, 2003 1:34 PM


It isn't a question of what the town may do, what may I do? This is an honest, as opposed to rhetorical, question by the way.

Does a "No Solicitors" or "No Trespassers" or, for that matter, "No Delusionary Howard Dean Advocates" sign oblige the target of the sign to act accordingly?

Posted by: Jeff Guinn at September 25, 2003 1:55 PM

No. In fact, I always approached those houses on the assumption that they were suckers for a sales pitch trying to protect themselves from themselves.

Posted by: oj at September 25, 2003 2:01 PM


What you did, and what you were obliged to do are two entirely different things.

If I post "No Trespassing, Beware of Unreasonable Dog" and you get bitten, what is your recourse?

If I post "No Trespassing," I find you on my property, call the police, and they get there before you leave, what is the result?

If I enforce "No Trespassing" with a fence and locked gate, are you allowed to jump the fence and knock on the door?

Darn it, where's a lawyer when you need one?

Posted by: Jeff Guinn at September 25, 2003 3:31 PM

Sorry, I meant to say "What you did, and what you are obliged to do might be..."

Posted by: Jeff Guinn at September 25, 2003 3:31 PM


I'd at least put up consertina wire if I were you. Similarly, if you don'r want to get phone calls don't get a phone.

Posted by: oj at September 25, 2003 4:58 PM


Sorry, I just got on. Didn't realize you needed me. Ok, I've considered the arguments and checked the law and have concluded the following basis for my advice to you:

Maybe yes, maybe no.

Posted by: Peter B at September 25, 2003 7:04 PM


I can hardly wait to get the bill.

Posted by: Jeff Guinn at September 25, 2003 8:58 PM