August 7, 2003

• Le Blog Politique de Jours pour Jeudi…

  
  

   

  
  

  First Amendment and Do-Not-Call – It’s All About Who Owns the Presses

  
  

   

  
  

   

  
  

  One of those quiet-yet-mighty battles is currently being waged. Beginning in January of this year, a consortium of four telemarketers filed suit in federal court in Oklahoma City to contest the approaching start date of the new federal do-not-call registry enacted recently. This, even before President Bush signed the bill into law in March.

  
  

   

  
  

  The law is now facing its time in the court system, which we are happy to say will not go anywhere near the infamously liberal ninth circuit.

  
  

   

  
  

  Once the law goes into effect in October, violators could face fines of $11,000 per violation. This should especially discourage small-time snake-oil salesmen.

  
  

   

  
  

  But it seems that one obvious and key part of the kings anatomy is not being mentioned.

  
  

   

  
  

  As we gear up for a full-fledged battle in the courts and on the Sunday talk shows, I think first there’s one argument that needs to happen:

  
  

   

  
  

  A media outlet or publisher such as the Fox News Channel, CBS or the Washington Post newspaper own their medium of communication. More specifically, they either physically own the hardware and locations they operate or they lease these and are thus justified in determining their purposes within the provisions of the contract. For businesses to advertise, they must pay Fox News or the Washington Post for a piece of that medium in which to place their advertisement. No advertiser in their right mind would sue a newspaper or broadcast network to secure their supposed “constitutional” right to place their ads in the lineup for free. In fact, if an advertiser were to somehow place an ad in one of those mediums without that outlets consent, they could face significant civil and perhaps even criminal penalties.

  
  

   

  
  

  Likewise, the phone customer owns his or her phone. He or she has paid the phone company to lease connectivity to the local telephone network. Thus, he or she is justified in determining their purposes within the provisions of the contract. Therefore it is unreasonable for a telemarketer to assume he has the right to advertise on a medium for which he has not paid unless the telemarketer is made a party in the aforementioned contract. While the telemarketer has paid for his own phone line, this only gives him the right to solicit himself, but neither has anyone else the right to solicit him unless he allows it.

  
  

   

  
  

  Another precedent for this line of thought is found with internet service providers. ISP’s such as earthlink and more recently AOL have begun to follow the model set forth by the premium cable channels to a great extent with regard to advertising. Granted, there too is needed room for improvement, but there is progress. However, those who advertise as sanctioned by these ISP’s do so because your contract with the ISP and their contract with the advertiser each permits it. Had it not, they would have no right to use the ISP’s web space to do so. In more stark example, those such as Juno’s free service cover all of their costs with ads as agreed upon. In point of fact, aside from the current telephone service system, there is really no other communications medium where the advertiser assumes he has a right to advertise without paying the one who owns the medium or method the agreed-upon fee.

  
  

   

  
  

  Now, that said, I think there is a great workaround that follows the ISP and commercial media example that could benefit all ethical parties, with the added twist of even addressing a new issue on the horizon: Helping the poor who cannot afford telephone service.

  
  

   

  
  

  Suppose businesses wished to underwrite the cost of phone service for customers who desired to participate. In return, they would retain the right to market to those customers. Again, exempli gratia, ISP’s and media outlets.

  
  

   

  
  

  Since there are a goodly number of people who would opt in to this, particularly college students and those on fixed incomes, the advertisers would have their ready market.

  
  

   

  
  

  This would help to also flush out the scam artists who would be locked out of such deals and would already be recognized as committing a crime simply for placing the call in the first place.

  
  

   

  
  

  Perhaps with this line of reasoning some clear thinking could be infused into these bellicose legal wranglings. What is more simple than “you do not have a constitutional right to my stuff”.

  
  

   

  
  

  Post Script

  
  

   

  
  

  Additional sources can be found here:

  
  

   

  
  

  Bush Signs Do-Not-Call bill into Law

  
  

  http://www.consumeraffairs.com/news03/dnc_law.html

  
  

  Telemarketers Sue over Proposed Do-Not-Call Bill

  
  

  http://www.wired.com/news/business/0,1367,57478,00.html

  
  

  AOL Advertising Schemes

  
  

  http://www.pcmag.com/article2/0,4149,929132,00.asp

  
  

  
  

   

  
  

   

  
  

   

  
  

   

  
  

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