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US regime
This page considers the US Do Not Call regime.
It covers -
introduction
Experience overseas offers some pointers for development
of an effective Australian regime through -
- legislation
(or a comprehensive voluntary code)
- effective
guidelines for implementation of that legislation/code
- benchmarks
for measuring the success of an Australian regime.
Restrictions
are not in place in India (the origin of much cold calling
to Australia), in Japan and in many other jurisdictions.
the US regime
The US National Do Not Call Registry (NDNCR),
implemented by the Federal Trade Commission in 2003 under
the Do-Not-Call Implementation Act, preempted
existing and proposed state legislation. It builds on
the 1991 federal Telephone Consumer Protection Act
(TCPA), which has been used in landmark prosecutions of
junk faxers.
Under the legislation most telemarketers are required
to delete from their call lists any numbers that are featured
on the NDNCR. Calling the deleted number may incur a fine
of up to US$11,000. Numbers are added to the registry
by consumers; registration is free and is effective for
five years. (After five years consumers need to re list
their numbers on the Registry. Individuals are able to
verify their registration expiry date on the FTC website
at any time.)
The registry includes home and mobile phone numbers. The
FTC began receiving consumer registration of telephone
numbers in June 2003. Within, Over 10 million telephone
numbers were registered within four days of the initial
launch, with more than 30 million numbers registered within
the first 40 days of the national register's operation.
As of June 2004 some 62 million numbers had been registered
on the national registry. Over 132 million numbers were
registered by mid-2006.
The federal regime withstood a constitutional challenge,
with marketers somewhat disingenuously claiming that restrictions
breached 1st Amendment protection of free speech.
Tim Searcy, Executive Director of the American Teleservices
Association, for example commented in the 2004 'Do Not
Call: Abdicating And Ignoring Responsibility' in 10 Richmond
Journal of Law & Technology that
The
residents of a home called to ringing phone do not know
before answering who is calling. If the harm is the
inconvenience of having to respond to an unwanted call,
or the intrusion on notions of "residential privacy"
by the ringing phone, the problem is not affected by
the content of the call. Indeed, the record before the
FCC and FTC reflected that many people were just as
opposed to unsolicited political or charitable calls
as they are commercial calls, while others would put
a stop to those calls but allow certain commercial calls
-- notably, those in which they were or might be interested
or where there is an existing relationship -- to continue
unabated. When the government crafts a content-specific
solution that gives some speakers special rights others
are barred from exercising, that is where constitutional
considerations must take precedence over facile regulatory
responses to more nuanced real-world concerns.
The
Federal Court of Appeals 10th Circuit upheld the NDNCR's
constitutionality, differentiating between commercial
communication and ordinary free speech.
The NDNCR has substantial exceptions for calls by (or
on behalf of) charities, political organisations, market
research services and commercial entities with which the
consumer has "an existing business relationship".
Callers offering to sell goods or services while ostensibly
conducting a survey must comply with the NDNCR deleting
requirements.
The 'existing relationship' provision enables an organisation
to call for up to 18 months after the consumer's last
payment, purchase or delivery - or an inquiry by the consumer
- unless requested not to call again. The organisation
must abide by such a request, with a penalty of up to
US$11,000 for noncompliance.
The legislation does not prevent consumers from independently
asking organisations not to phone them - and indeed not
to contact them in any way.
In 2005 DirecTV agreed to pay US$5.35 million to settle
charges that its telemarketers called US households listed
on the national do-not-call registry to pitch satellite
TV programming.
Activist André-Tascha Lammé,
who used the TCPA to win US$3,500 in a Sacramento small
claims court one telemarketers, notes that
most offenders are small and fly-by-night, hard to serve
with court papers and even harder to collect money from.
Exemptions for political communication have been exploited
in so-called robocalls, recorded telephone messages from
political candidates and organisations. Perceived abuse
- with some households receiving over 20 calls per day
and instances of identity theft ('joe
jobs' in which the call purports to come from an actual
candidate or political figure) - and reports that over
65% of registered voters have been bothered (PDF)
have led to proposals for state political do not call
registers or, more contentiously, for broader restrictions
on callers.
states
Since the inception of the national registry program,
seven US states that had established state DNC lists stopped
collecting consumer registrations, instead relying on
the national registry for enforcing state laws. Another
ten states (without state registries) enacted laws 'adopting'
the national registry for state law purposes. 18 states
that operated or continue to operate do not call lists
contributed their data to the national registry; as of
late 2006 only seven states have not shared their state
lists with the national agency.
studies
Legal literature on the US regimes includes Michael Considine's
'User Registration Websites: Possible E-Loopholes To The
National Do-Not-Call Registry' in 53 Emory Law Journal
(2004) 1,951-1,980, Hilary Miller & Robert Biggerstaff's
'Application Of The Telephone Consumer Protection Act
To Intrastate Telemarketing Calls And Faxes' in 52 Federal
Communications Law Journal (2000) 667-686, Jared
Strauss' 2004 'The Do-Not-Call List's Big Hang-Up' in
10 Richmond Journal of Law & Technology (27-48),
Brian Stano's 2003 'How Can They Keep Calling Me? Exemptions
And Loopholes In The Telephone Consumer Protection Act
And The Need For Further Regulation' in 50 Cleveland
State Law Review (487-513), Janelle Romp's 2002 '"Hello,
May I Interest You In A Do Not Call List?" A Comment
On The Federal Trade Commission's Proposal To Amend The
Telemarketing Sales Rule' in 71 University of Cincinnati
Law Review (639-664), Mark Nadel's 1986 'Rings Of
Privacy: Unsolicited Telephone Calls And The Right Of
Privacy' in 4 Yale Journal on Regulation (99-127),
Shannon Torgerson's 2004 'Getting Down To Business: How
The Established Business Relationship Exemption to The
National Do-Not-Call Registry Forces Consumers To Pay
For Unwanted Sales Calls' in 3 Northwestern Journal
of Technology & Intellectual Property (24-44),
Michael Shannon's 2001 'Combating Unsolicited Sales Calls:
The "Do-Not-Call" Approach To Solving The Telemarketing
Problem' in 27 Journal of Legislation (381-422),
Ian Ayres & Matthew Funk's 2003 'Marketing Privacy'
in 20 Yale Journal on Regulation (77-133), R.
Michael Hoefges' 2005 'Telemarketing Regulation And The
Commercial Speech Doctrine' in 32 Journal of Legislation
50-102 and Edward Schoen & Joseph Falchek's 'The Do-Not-Call
Registry Trumps Commercial Speech' in Michigan State
Law Review (2005) 483-535.
A useful overview is provided in the 2005 Telemarketing
- Implementation of the National Do-Not-Call Registry
report (PDF)
by the federal Government Accountability Office (GAO)
and the FTC's 2007 report to Congress on the Registry
(PDF).
Salient academic research includes Hal Varian, Fredrik
Wallenberg & Glenn Woroch's 'The demographics of the
do-not-call list' (PDF)
in 3(1) IEEE Security & Privacy Magazine
(2005) 34-39; their 'Who Signed Up for the Do-Not-Call
List?' paper;
Michael Link, Ali Mokdad, Dale Kulp & Ashley Hyon's
'Has the National Do Not Call Registry Helped or Hurt
State-Level Response Rates? A Time Series Analysis' in
70(5) Public Opinion Quarterly (2006) 794-809,
Shannon's 'Combatting Unsolicited Sales Calls: The Do
Not Call Approach to solving the Telemarketing Problem'
in 27(2) Journal of Legislation (2001) 381-420,
Jared Strauss' 'The Do-Not-Call List's Big Hang-up' in
10(4) Richmond Journal of Law & Technology
(2004) 1-42, Beard & Abernethey's 'Consumer Prices
and the Federal Trade Commission's Do-not-call Program'
in 2492) Journal of Public Policy & Marketing
(2005) 253-259, Douglas Nelson's 'The Do Not Call Implementation
Act: Legislating the Sound of Silence' in 16 Loyola
Consumer Law Review (2004) 63-97 and Mariela Hristova's
2005 'National Do-Not-Call-Registry: Report on a Government
Information Initiative' (PDF).
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