CEO's Stance on National DNC List Puzzles Some

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Bank of America CEO Ken Lewis' support of the Federal Trade Commission's proposed national do-not-call list in a speech last week has raised eyebrows among members of the telemarketing industry -- and possibly among their foes as well.

Speaking before the National Privacy Conference on March 21 in Washington, Lewis said his only question about the national DNC list was: Why should his company oppose it? Bank of America has maintained its own DNC and do-not-mail lists for years and subscribes to the Direct Marketing Association's Telephone Preference Service, he said.

"And, as far as I know, we're the first and only large corporation to offer public support for the FTC's idea," he said.

Lewis said he has reservations about the list as proposed by the FTC. The national list should pre-empt state DNC lists, of which 20 are currently active, and should not apply to customers with whom companies have an existing business relationship.

"There are simply too many legitimate reasons that companies should contact their own customers -- reasons that customers find useful -- to include calls to existing customers in a national do-not-call list," Lewis said.

Lewis surprised industry lobbyists. Jim Conway, vice president of governmental affairs at the DMA, said he was unaware of what Lewis had said but that if true, the comments would be "puzzling and troubling." Bank of America is a DMA member and has never voiced this position in the past, even in meetings with DMA leadership, Conway said.

"I wouldn't frankly understand why they would take a position supporting the FTC's do-not-call list," he said.

Bank of America's support also might shock some in the anti-telemarketing camp. One California privacy activist, Robert Arkow, sued Bank of America in 1995 in a case concerning a DNC violation and was awarded money.

In his suit, Arkow claimed that a Bank of America telemarketer called him to offer investment opportunities even though he had indicated on a loan application that he did not want telemarketing calls. A municipal court ruled that the call did not represent a DNC violation because the Federal Communications Commission's Telephone Consumer Protection Act allows damages only when consumers receive more than one call in a 12-month period, a fact the court found "troubling."

However, the court awarded Arkow $1,000 because the Bank of America telemarketer failed to properly identify himself in the call and because the bank failed to deliver Arkow a copy of its DNC policy, as he had requested, in a timely fashion. The policy took five weeks to arrive.

On Friday, Arkow said he thought Lewis' statement in support of a national DNC list was positive, but added that the CEO most likely made the statement because he had no choice, thanks to growing pressure from consumers. The telemarketing industry is in such trouble that it has become "politically correct" even for business leaders to support stricter regulations, he said.

"Telemarketing is becoming the pariah of the 2000s," Arkow said. "They're like the tobacco industry of five years ago."

As it stands, the FTC's proposed DNC regulations would have little effect on Bank of America because the FTC lacks jurisdiction over banks and financial services companies. However, in his speech, Lewis said he would support a broadening of the national DNC list to other industries.

"So, yes, we support the idea of a national do-not-call list, whether it comes from the FTC, the FCC or any other governmental body that has the appropriate jurisdiction," he said.

A bill proposed this month by Rep. Nancy Johnson, R-CT, would do just that, placing other government agencies under the FTC's jurisdiction in regard to the national DNC list. However, Conway said the bill will have a difficult fight in the House of Representatives, in which Republicans, generally perceived as business-friendly lawmakers, hold sway.

"That's an extra parliamentary hurdle," Conway said. "It's early in the game."


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