"Do Not Call" Means Poorest May Lose Jobs

According to The Los Angeles Times, "Last summer, the federal government announced a national registry for consumers who want to block telemarketers from calling them. Americans rushed to sign up.

"Of the nation's 166 million residential numbers, 51 million are now off-limits to telemarketers. Despite ongoing court challenges, the list went into effect last month.

"The crackdown might be welcomed by consumers, but not by telemarketers like Millican, many of whom survive on the economic fringe. The nation has lost 2.6 million jobs in two years, and the 'do not call' list is expected to put hundreds of thousands more people out of work."

In "Like It Or Not, Free Speech Protects Telemarketers, Too", Cato's Robert Levy, senior fellow in constitutional studies, argues that "when government sets the rules, it must not discriminate based on the content of the calls. That's what the First Amendment means. Free speech is not subject to plebiscite, no matter how many millions sign up for no-call. [Supreme Court] Justice William Brennan got it right: 'If there is a bedrock principle underlying the First Amendment, it is that government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.'"

People don't like calls from telemarketers so that had them declared illegal.

People don't like receiving threatening phone calls, so that has been made illegal. People don't like being defrauded over phone lines, so that has been made illegal. What's the difference here? Things are made illegal if (a) society decides the behavior in question is unnaceptable and (b) there is no constitutional right to engage in such behavior. There is no constitutional right to commit trespass, even if you commit trespass while exercising a constitutional right. You don't have the right to exercise your second amendment rights on my property.

Similarly, people don't like getting calls from their mothers-in-law (intential infliction of emotional distress) so they have those declared illegal.

No, they haven't. Intentional infliction of emotional distress is a common-law tort that is exceedingly rare. It covers incredibly offensive beahvior (like calling someone as a prank and telling them their wife has been killed). I only used it as an example of how certain uses of the phone are illegal and/or actionable and how crimes committed over the phone are really no different than crimes committed in the non-electronic world.

All you are doing is rationalizing your dislike of telemarketers into various forms of law breaking. But your case (and everybody else's) is so weak, you have to keep switching from one law to another.

No, I'm pointing out that banning telemarketers from calling people on the FDNC list can be justified in several different ways. I personally think this falls best under trespass laws.

We screen all calls so we can tell a TM by the hangup. At least we used to be able to. Now we get a distinct Indian accent, sometimes male, sometimes female, that says "Ello? Ello?" before hanging up, which leads me to believe the TMs are outsourcing and their new foreign employees have no real experience with answering machines.

We signed up for the list too. At first the calls went to zero, now they're creeping back as above. Oh and any hangup we get now is a blocked number, or one that doesn't exist when return dialed.

Sigh.

Wrong. At the point where the phone line enters your home, YOU own the line -- it's your property, your responsibility. I found this out the hard way

Not necessarily the case. Most of the time, the line coming across your property to your house is the phone companies. The crappy little parts in your house may well be yours, but don't have to be.

For most of the history of the phone companies, all of the system was belonged to the phone companies. Only after the breakup of Ma Bell did they pass off to the consumer the responsibility of the phone in their own home. But in any case, that phone which you use, is still part of an overall system, and you wouldn't be able to make any phone calls at all if you weren't part of that system. The bottom line is that it's just big government dickering with the private businesses and the rights of Americans to earn a living. Sure, you might be too lazy to turn off you phone, too cheap to buy a answering machine to screen your calls, too dumb to work an answering machine efficiently, or too afraid to turn off you phone for dinner lest you miss some town gossip from a neighbor, but what is the justification for letting government assess monstrous fines for laying on it's butt and sucking up the whining and complaining of the people who do such things? Especially when it keeps others who are willing and able to do productive work from doing it.

The bottom line is that phone system wouldn't be there if private business and entrepeneurship hadn't built it in the first place. The government never would have, and you just want the benefit it from the system without paying your dues.

Like I said, it doesn't bother me personally because I have repostitioned to be better off telemarketing with the legislation in place. But it does represent another case of the public running to big government to blow their nose for them, and that's not a good idea at all.

The Commerce Clause was created to allow the Federal government to override state restrictions on trade such as tariffs.

That's just one part of the Commerce Clause. The Commerce Clause gives the feds the power to "To regulate commerce with foreign nations, and among the several states, and with the Indian tribes." Tell me how regulating commerce that is clearly interstate (telemarketing) doesn't qualify as "regulation" under the Commerce Clause?

Your contract with the phone company does include calls from anyone.

And again, telemarketers are not party to my contract with the phone company. They can't rely on the contract to defend themselves.

People don't like receiving threatening phone calls, so that has been made illegal. People don't like being defrauded over phone lines, so that has been made illegal.

No, all commercial calls have been made illegal so the DNC call list can be justified.

Things are made illegal if (a) society decides the behavior in question is unnaceptable and (b) there is no constitutional right to engage in such behavior.

That's just wrong. All things are legal unless the Feds have been specifically granted authority to regulate it. Consensual sexual intercourse is one simple example.

You don't have the right to exercise your second amendment rights on my property.

You don't have any Constitutional right to restrict my firearms practice because you don't like the sound of gunshots. If you pass a local ordinance fine, at least I have a chance to lobby against that.

I personally think this falls best under trespass laws.

Trespass is one of the weakest arguments I have heard on this thread. You signed up for a phone service that specifically allows what you are now calling "trespass". The correct analogy is leaving your gate open with a sign saying "come on in". I can't be charged with trespassing in that case.

The crappy little parts in your house may well be yours, but don't have to be.

The point is, as you concede, that the line inside my house is MINE, and not community property.

But in any case, that phone which you use, is still part of an overall system,

Not those crappy little parts (that is, phone line) inside my house which are my property and responsibility, according to the phone company. My crappy little parts might be connected to the system, but they are not part of it in the sense of ownership.

and you wouldn't be able to make any phone calls at all if you weren't part of that system.

More to the point, the telemarketers aren't able to make any phone calls at all to me without going through (using) those crappy little parts in my house, my private property.

So if I say that my crappy little parts, which even you admit I own, are off limits to telemarketers, by what right do they trespass on my crappy little parts?

So if I say that my crappy little parts, which even you admit I own, are off limits to telemarketers, by what right do they trespass on my crappy little parts

What gives you a right to trespass on their right to earn a living on the system their efforts and hard work built. Industry built the phone system, not tidy-diaper thinking and intolerant petualance. You even have a right to not have a phone at all. You can turn your phone off. You can screen your calls, you can get an unlisted number and be serious about not giving it out. You can teach your kids to delete the hangups, though most telemarketers don't leave those. Why should they have to turn off their livlihood because you overreact, or because big government promises to scratch your itch. I wouldn't do it if I were you. You will no doubt be sorry some day for it, and you will most likely get what you deserve, whatever it is, but don't count on actually wanting it when it arrives.

They have contracts with their phone companies that allow them to call you. Your contract does not override theirs.

Contract Law 101: A has contract with B. B has Contract with C. A and B's contract in no way binds C. A telemarketer's contract with a phone company in no way effects me, and vice-versa.

Contract Law 102: You cannot contract to do something illegal. If a telemarketer enters into a contract with a phone company for services, the telemarketer cannot use those services for something illegal and hide behind the contract. So, a telemarketer may have a contract for "unlimited phone services" but those services are limited to legal behavior.

No, all commercial calls have been made illegal so the DNC call list can be justified.

No, they haven't. Only a certain sub-set of commercial calls have been made illegal. Commercial speech has less constitutional protections than political speech. Reasonable limitations on time, place and manner on commercial speech that leave open alternative venues for the commercial speech are quite constitutional. Try arguing in front of a judge that you have a first amendment right to ride around in a sound truck and blare 140 decibel commercial speech in a residential neighborhood at 4:00 AM and see how far you get.

That's just wrong. All things are legal unless the Feds have been specifically granted authority to regulate it

Granted, but I was talking about the process that leads to something being banned- popular will + a constitutional law = ban on certain behavior. In any event, as I've mentioned before, regulation of telemarketing falls squarely under the Commerce Clause

You don't have any Constitutional right to restrict my firearms practice because you don't like the sound of gunshots.

Sure I do- in fact, any government has a right to pass ordinances against noise etc. So long as the ordinance is content neutral- i.e., the noise ordinance is directed at noise, rather than at your 2nd amendment rights, it passes constitutional muster. Has this been an issue for you in the past?

You signed up for a phone service that specifically allows what you are now calling "trespass". The correct analogy is leaving your gate open with a sign saying "come on in". I can't be charged with trespassing in that case.

Maybe, but once again, my contract with the phone company only means that I can't sue the phone company for allowing telemarketers to use the phone lines to call me. Your "come on in" sign analogy isn't accurate. More accurate would be a situation where you, as a homeowner, give the power company an easement to run lines onto your property (if you own a home, your property is subject to such an easement) and to repair them as necessary. You then proceed to put a non-trespassing sign on the property. A third-party, such as a door-to-door salesman, could not argue that the easement to the power company allows him to trespass onto your property.

It sounds like you are agreeing that telemarketers can call you since their contract allow them to call anyone. Likewise your contract allows calls from anyone. Then you claim the telemarketers are doing something illegal. Besides the tautology that you have lobbied to have calls from telemarketers made illegal, what was actually illegal about them?

You claim trespass, but your contract specfically allows the action that you claim to be trespass. You also claimed nuisance, but decided that trespass was a stronger case. There's no Federal case for banning nuisances. The protection of interstate commerce would point to the opposite conclusion, that the Feds should overrules all State DNC lists.

any government has a right to pass ordinances against noise etc. So long as the ordinance is content neutral- i.e., the noise ordinance is directed at noise, rather than at your 2nd amendment rights, it passes constitutional muster. Has this been an issue for you in the past?

You're wrong about the "any". The Federal government has only enumerated powers, regulating noise is not one of them even if my noise travelled across state lines.

More accurate would be a situation where you, as a homeowner, give the power company an easement to run lines onto your property (if you own a home, your property is subject to such an easement) and to repair them as necessary. You then proceed to put a non-trespassing sign on the property. A third-party, such as a door-to-door salesman, could not argue that the easement to the power company allows him to trespass onto your property.

That's tortured and wrong. The service from the phone company specifically allows calls from all parties including commercial calls. You are correct that it does not allow illegal calls, but you haven't shown what causes commercial calls to be illegal.

But the serious question being posed is: Is it fundamentally good policy to force every single taxpayer to have to pay for this government protection even if they don't mind being called?

What is the cost going to be? Pennies per person, tops? I'm okay with making telemarketers pay for the costs of the FDNC list, if that makes you feel better.

Next question: If you worked in an industry where you relied on telephone solicitation, wouldn't you be hacked off?

Sure, but 50+ million people were sufficiently pissed off at telemarketers' business practices that they signed up for the FDNC list.

The telemarketing industry should have seen this coming. An industry must either regulate itself, or government will end up doing it for them. Government regulation always ends up being far worse than self-regulation.

Barring the existence of a law to the contrary, their actions are legal. There is now a law to the contrary. Besides the tautology that you have lobbied to have calls from telemarketers made illegal, what was actually illegal about them?

Um, how else is something supposed to be illegal other than through the passing of a constitutional law that makes it illegal? Your question doesn't make sense.

You claim trespass, but your contract specfically allows the action that you claim to be trespass

The terms of my contract have been limited by the passage of a law. Laws trump contracts.

The protection of interstate commerce would point to the opposite conclusion, that the Feds should overrules all State DNC lists.

State DNC lists are constitutional becuase they only regulate calls from telemarketers in-state to other people in-state. That is intra-state commerce.

You're wrong about the "any". The Federal government has only enumerated powers, regulating noise is not one of them even if my noise travelled across state lines.

I'm not really sure where this whole noise issue came from- it wasn't my example. My only point is that your exercise of constitutional rights does not protect you from charges of violating other, constitutionally-neutral, laws. For example, your 2nd amendment rights don't allow you to get away with murdering somebody becuase you used a shotgun as the murder weapon.

The service from the phone company specifically allows calls from all parties including commercial calls.

And I agree with you- it's just, legally-speaking, that contract is irrelevant when the person trying to enforce its provisions is not party to the contract.

I'm glad we've finally cut to the chase. You lobbied to have a law passed to restrict an activity that you don't approve of. You can't ban it since it is obviously not illegal. So instead you got a list where you can sign up for protection against commercial calls. Am I right so far?

Well, my friend, that's an entitlement. The market is able to provide phone service without commercial calls. My cell phone company for example sued a commercial spammer who misused their network. But you want a cheaper land line service with the same feature that I pay more for. So you lobbied and had it given to you.

I understand your hypocrisy, those calls got on everybody's nerves (including mine), so why not make an exception to your anti-state principles in this one case? I made an exception myself when I approved of the FL legislature intervening between a husband and wife in a "right-to-die" case. I decided that her life outweighed the negative effects of such legislation. We all have to make decisions like that and we need to understand and accept them and not try to rationalize it with tortured analogies and applications of law.

Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.