Robert Bonomi <bonomi@host122.r-bonomi.com> replied to TELECOM Digest
Editor in message news:telecom25.253.15@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. Some court probably needs to rule on this to confirm it,
but it's the obvious intent of the law. 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.
> 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?
> 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.
> 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.
> 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). Laws address intent and foreseeable effect. They are
interpreted by courts, not just by the individuals who read them.
mc (look@www.ai.uga.edu.for.address)