In article <telecom25.254.8@telecom-digest.org>, Barry Margolin
<barmar@alum.mit.edu> wrote:
> In article <telecom25.252.6@telecom-digest.org>, mc
> <look@www.ai.uga.edu.for.address> wrote:
>> Ed <ed1ward2@verizon.net> wrote in message
>> news:telecom25.251.3@telecom-digest.org:
>>> 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 proscriptions on the use of "recorded voice", and/or
"autodialers", *that* is a different story. Those rules apply to _all_
mass calling -- well except by tax-exempt non-profits, that is.
In article <telecom25.254.7@telecom-digest.org>, mc
<look@www.ai.uga.edu.for.address> wrote:
> 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.
_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." <grin>
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.
Robert Bonomi (bonomi@host122.r-bonomi.com)