Re: A New Way around the Do Not Call Lists ...

>>> This past January I got a call from Peruzzi, a local car dealership

>>> here in Bucks County PA (suburban Philadelphia), wishing me a Happy >>> Holiday. >> I think people are going around telling each other -- quite falsely -- >> that if the message doesn't explicitly announce things for sale, it's >> not an advertisement and therefore not a violation. >> A few weeks ago, a jeweler in my town used an autodialer to invite >> people for a free ring cleaning. He told me it wasn't an >> advertisement but an invitation. Worse, he made no attempt to avoid >> dialing hospitals, fire stations, large PBXes, etc. ... my first >> encounter with it was when my secretary got about 8 copies of the >> message via other phones rolling over to hers. >> I don't know, but I suspect someone is aggressively selling >> autodialers by telling people falsehoods about the law. >> [TELECOM Digest Editor's Note: What may be a bit more tricky, IMO is >> when the purported message is to 'wish happy holidays' as our >> original writer noted. When such a message is conveyed, is it still >> in fact a 'sales call' or an advertising pitch? PAT] > What does it not being a sales call have to do with it? The DNC list > isn't only for sales/advertising, it's for any kind of mass calling > except political and surveys.

Says *who*?

The FCC regulations regarding DNC cover, per 47 USC 227, *only* calls involving the "solicitation of the purchase or sale of, or investment in, property, goods, or services". And 'tax-exempt non-profit organizations are not bound by those rules.

The FTC regulations regarding the DNC list cover *only* "telemarketing" calls -- which, again are defined as calls for the purpose of the "solicitation of the purchase or sale of property, goods, or services". Again tax-exempt not-for-profits are exempted.

Now, the proscripti> Robert Bonomi replied to TELECOM Digest

Editor in message news: snipped-for-privacy@telecom-digest.org: >>> [TELECOM Digest Editor's Note: What may be a bit more tricky, IMO is >>> when the purported message is to 'wish happy holidays' as our >>> original writer noted. When such a message is conveyed, is it still >>> in fact a 'sales call' or an advertising pitch? PAT] >> The statute, and the various sections of the CFR implementing it, is >> quite specific. >> "(3) The term "telephone solicitation" means the initiation of a >> telephone call or message for the purpose of encouraging the purchase >> or rental of, or investment in, property, goods, or services, which is >> transmitted to any person, but the term does not include ..." >> If the call is _not_ "for the purpose of" getting some one to purchase >> or rent "property,goods, or services", then it is not subject to >> restriction. > Bingo. The "greeting" or "invitation" from a business is intended to > bring in customers and lead to purchase or rental of goods, property, > or services. The fact that it is expressed indirectly does not change > that fact.

_Legally_ that is nowhere near the clear-cut matter that you seem to think that it is.

Some court probably needs to rule on this to confirm it, but it's > the obvious intent of the law.

"Sorry, Charlie" there -have- been rulings already. and "indirectly" _does_ change things. Calling to attempt to 'make appointments' for a salesperson to call and make a pitch, _is_ proscribed. They're trying to 'sell' having a salesman come make a presentation. "happy holidays from your friends at Wal-mart" is not proscribed.

There is such a thing as indirect communication, and the purpose of > the Do Not Call list was to prohibit a specific type of recorded > messages, not a specific set of words within recorded messages.

Wrongo. The DNC list has -nothing- to do with 'recorded messages'. Recorded messages are either allowed, or disallowed, according to criteria that *DO*NOT* involve presence on the DNC list.

> The 'other' regulator, the FTC, is by statute, restricted to >> regulation of 'commercial' activities, and *their* telephone >> regulations apply ONLY to calls related to the offering for sale, or >> soliciting the purchase of, 'property, goods, or services'. _They_ >> have held that calls just 'setting appointments' for someone to make >> an actual sales pitch, are covered by FTC regs. >> The 'happy holidays' call _is_ probably legal, in a strict >> interpretation of the law. OTOH, the dealership may well be doing >> more damage to it's reputation by making the calls, than the goodwill >> it generates. > I don't think it was legal. In any case, what I always say is, > "remember *why* there is a Do Not Call list." Even if you think it's > technically legal, why do you think people are going to enjoy it?

Who says I think they will? But, unfortunately (well maybe not), "bad judgment" is _not_ against the law.

> The free ring cleaning offer is also probably, technically, >> non-commercial, and thus exempt from the telemarketing restrictions. > I disagree. Its purpose is to bring potential customers into a place > of business so they can be given a sales pitch.

"Everyone has the inalienable right to be wrong."

There _have_ been rulings, by a court of competent jurisdiction, on point, which disagree with your 'opinion'.

> A great deal depends on exactly how the message reads -- if they >> mention only the free ring cleaning, who they are, and when they're >> open, they're almost assuredly on 'safe ground' legally. OTOH, if >> they talk up _other_ things they do as well, -- .e.g, " free ring >> cleaning offered by XYK jewelers, > They at least got that far.

Which *is* perfectly O.K.

> purveyors of fine diamond jewelry, and quality watches. Distributors >> for Omega,Wittenhaur, Rolex, and Movado watches", _that_ is likely >> to run afoul of the FTC telemarketing rules. > I don't think they went quite that far. >> The statute, and the various sections of the CFR implementing it, is >> quite specific. >> "(3) The term "telephone solicitation" means the initiation of a >> telephone call or message for the purpose of encouraging the purchase >> or rental of, or investment in, property, goods, or services, which is >> transmitted to any person, but the term does not include ..." >> If the call is _not_ "for the purpose of" getting some one to purchase >> or rent "property,goods, or services", then it is not subject to >> restriction. > Just as an aside ... I think what we are arguing about here is a very > common kind of misunderstanding of the law by technologists. > Laws are not computer programs. The words and phrases in laws are not > self-defining. Laws have to be understood in context. One of the > guiding principles of law is that technical loopholes generally do not > work (which is a dramatic difference between laws and computer > programs).
*SNICKER* The courts _routinely_ hold that loopholes *do* apply. That if the legislative body had 'meant' to say things other than the literal interpretation of the words as enacted, that they *would* have SAID IT DIFFERENTLY. Legislative bodies, with _great_ regularity, enact amendments to existing legislation *because* the courts have held that 'what they _actually_ said' was *not* 'what they meant'.
Laws address intent and foreseeable effect. They are > interpreted by courts, not just by the individuals who read them.

Tell me about it. I have worked professionally as legislative staff, not staff of a legislator, but for the State Senate, itself.

Also, I have drafted proposed legislation (as a lobbiest), which was subsequently introduced in the body, and enacted into law.

Reply to
Robert Bonomi
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