The furor surrounding the federal do-not-call list took on the air of a French farce in late September, as direct marketers watched the government flip-flop back and forth on whether the list was constitutional.
First, U.S. District Judge Lee R. West in Oklahoma City ruled that the FTC lacked the proper statutory authority from Congress to administer this list. His ruling was in response to a lawsuit by the DMA and three telemarketers.
That led both the House and Senate to quickly pass legislation enabling the FTC to administer this list. And although President Bush signed a law authorizing the implementation of a federal do-not-call list, its implementation may yet be stymied by challenges on constitutional grounds.
Then separately, U.S. District Judge Edward W. Nottingham in Denver ruled the list was unconstitutional because it restrained telemarketers from commercial free speech while still allowing calls from charities.
As of Sept. 29, an appeals court ruled that the Federal Communications Commission would be allowed to enforce the registry. At deadline, the American Teleservices Association (ATA) had asked the Supreme Court to overturn the appeals court's decision, but had not received an answer.
FCC Chairman Michael Powell said his agency would enforce the penalties because the FTC was prevented from doing so by a federal judge's order. The list will take effect Oct. 1 as originally planned.
So what should marketers do?
The Direct Marketing Association asked all direct marketers to abide by the list, which contains the names of the more than 50 million people who don't want to receive telemarketing calls.
“The industry seems to understand what we've said for almost 20 years,” said DMA spokesman Louis Mastria. “If people don't want to get called, they shouldn't get called.”
“We're advising our members to act like it's still going into effect Oct. 1,” said Barbara Tulipane, chief executive officer of the Electronic Retailing Association, which counts large teleservices bureaus like West Telemarketing and Convergys among its members.
In contrast, the ATA — which always believed the list was unconstitutional — has been taking a hard line. Just after Lee's decision, executive director Tim Searcy had reportedly been advising his group's members to continue calling numbers on the list after Oct. 1.
While industry groups and the courts clash over jurisdictional issues that may stretch indefinitely, marketers face more pressing concerns — namely, how to approach consumers once the much-ballyhooed Oct. 1 implementation date passes.
For some industry observers, there is no question.
Glenn Crockett, a product leader at Acxiom Corp., recommends passing telemarketing prospect files through the federal do-not-call file. “We are also suggesting that our compliance department try to understand the channel of preference of its clients. Not everyone has signed up for the do-not-call list. And some people prefer to be communicated with by e-mail.”
Crockett continued, “In direct marketing, you can build models to determine what kind of products people would buy. You can also build models, perhaps based on previous history, as to how they'd like to be communicated with. If I buy or seek offers on the Internet, you might assume that e-mail is the appropriate channel for communicating with me.”
Perhaps, but marketers should keep on top of changing channel preferences, especially as the anticipated 60 million consumers on the do-not-call list find themselves increasingly targeted by both traditional direct mail and e-mail. Their preferences may change.
Prospecting, Crockett acknowledged, will be more difficult under the new rules. But he also said that demographic and psychographic information, in the absence of customer history, would allow marketers to do some modeling.
So what are marketers actually doing?
Slowing down — at least when it comes to using ancillary telemarketing data services. Crockett said that within Acxiom, the group that appends telephone numbers had seen a decrease in business starting in late August.
“But phone numbers are not just for telemarketing. Many companies that need verification use those as well,” he said.
Linda A. Goldstein, a partner at Hall Dickler Kent Goldstein & Wood, said that regardless of the outcome of the various challenges to the new do-not-call law, marketers should respect consumer choices and preferences regarding not being contacted.
“These legal battles cannot be seen as being for or against a do-not-call list per se,” she said. “These cases are about the legal process and the procedures through which the list was established. As a member of the legal community, I'm gratified to see the judicial process show respect for the limitations on statutory authority and First Amendment protections accorded to free speech.”
Even marketers that take all the right steps should know that their outbound call center reps may run into some problems. The cutoff date for consumers to be included in the Oct. 1 update was Aug. 31. Roughly 3 million consumers signed up for the list in the month following that date, and they will not be pleased to receive calls.
Your Turn
Tell Direct what you think at DMA Annual
Have opinions? We want 'em!
Direct and database survey firm Vente Inc. will be conducting “Beat of the DMA” at this year's Direct Marketing Association Annual Conference in Orlando, Oct. 12 to 14.
Stop by Direct's booth (#914) and take our daily poll on the DM issues of the day, such as the do-not-call list, privacy, the economy and more. Then check out our Show Daily or Directmag.com for the results.
The survey will utilize Vente's Beat of America polling system. The first 100 participants in the survey will receive a digital bubble clock, courtesy of Vente.
