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by
Ralph Nader
September
30, 2003
This
week the American people were given a highly publicized free lesson in how they
can become powerful against dominant corporate interests. It was the swirling
dynamics around the Do Not Call registry established by the Federal Trade
Commission which drew over 50,000,000 people in a matter of weeks who don't
like to be bothered by telemarketers while they're eating dinner.
The
events started on September 23rd when a federal district court judge, Lee R.
West, ruled that the Federal Trade Commission did not have the legal authority
to set up such a system. Members of Congress went, as they say, ballistic both
as Republicans and Democrats. Back in February, 98 percent of the Congress
voted to fund such a registry that they thought was already authorized in
previous legislation. The reaction to Judge West's decision was bipartisan. The
message was that this decision will not stand.
In
little more than 24 hours, Congress overwhelmingly passed what Rep. Billy Tauzin
called "This Time We Really Mean it Act." The vote was 412 to 8 in
the House and 95 to 0 in the Senate. President Bush said he would sign it
immediately.
It
is fascinating to watch legislators turn away from their usual corporate grips
when they hear the growing thunder of the people. Bill Tauzin, a certified cozy
corporate carnivore in most instances, trumpeted "Fifty Million Americans
can't be wrong." He should have added "who spoke out," for he
has been ignoring the subdued wishes of tens of millions of Americans on many
other subjects that have come before his Subcommittee and his own vote.
The
powerful telemarketing industry whose campaign contributions and allies in
Congress have made it a force to be reckoned with was also overwhelmed by the
vote. It is in a bind. On the one hand, it doesn't want to appear too
aggressive in taking away the right of the people to register "do not
call,"; on the other hand it wants to over-turn the FTC rule in court.
Hours after the Oklahoma decision was countered by Congress, a federal district
court in Denver ruled that the Do not Call Registry violated the telemarketing
companies' (who are not real persons, we should remember) constitutional right
of free speech. Judge Edward Nottingham ruled that the FTC burdened the
commercial speech of the telemarketing companies by not applying the Do Not
Call rule to non-profit solicitation such as those of the Red Cross, colleges,
or public television. That burden he said was significant enough to violate the
First Amendments speech right of these corporations.
There
are two problems with the Judge's reasoning. First, the FTC has no jurisdiction
over many non-profit group activities, so it could not adjust to his ruling
even if it tried. More important, the courts have distinguished, though less
than before, between the constitutional protection of commercials speech and
what the attorneys call political speech -- regular conversations. In a word,
commercial advertisements or marketing talk are given less protection from
regulation, especially when consumers don't want their privacy invaded.
The
Supreme Court has already allowed consumers to block so-called junk-mail.
People can put a no-solicitation sign in front of their house. Constitutional
law specialists think the Direct Marketing Association -- one of the plaintiffs
-- will not likely over-turn the FTC rule on appeal.
Meanwhile,
Congress is trying to figure out what to do when a court raise a constitutional
issue -- usually reserved for the courts -- in time for the October 1st
deadline for the Do Not Call Registry to go into effect.
Feeling
the public's heat, the Direct Marketing Association on September 26th advised
its members to respect the national "do not call" list despite the
two court rulings in its favor. Someone's getting smart. Corporate free speech
does not extend to unwilling buyers who have registered their desire to keep
the calls from coming to their homes.
All
in all, the lesson is that should many Americans devote a tiny amount of time
to convey their desires or displeasures, the thunder from that large community
is heard in Washington. Civic morale in America should grow and give people a
better feeling that when they act, they make the difference.
Ralph Nader is America’s
leading consumer advocate. He is the founder of numerous public interest groups
including Public Citizen, and has twice
run for President as a Green Party candidate. His
latest book is Crashing the Party: How to Tell the Truth and Still Run for
President (St. Martin’s Press, 2002)
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