Damned If You Do, Damned If You Don’t

It’s interesting to look at last week’s opposite decisions by the American Teleservices Association and the Direct Marketing Association over appealing a federal appellate court’s ruling to uphold the national do-not-call registry. Did the DMA cave, or did the ATA make the right choice? It truly depends upon how you view the situation. As I wrote two weeks ago, I think — at this point — it’s in the industry’s best interest to work with the feds to make the regulations as palatable as possible. Last fall’s consumer backlash would be a taste of what we would see if the Supreme Court overturned the ruling.

However, ATA executive director Tim Searcy made a valid argument in an interview with the Los Angeles Times, saying he feared this is just a starting point and “will create an environment where things like direct mail and e-mail are fair game for legislators. We are fighting this … for the industry as a whole.” In defending the DMA’s stance, president/CEO H. Robert Wientzen said the negative publicity was just too great and the chance of victory too small. “We must not forget that consumers are the lifeblood of our industry, and, therefore, must proceed in a manner in which their strongly held preferences are paramount,” he wrote in an e-mail explaining the DMA’s position to its teleservices members.

The DMA has been running from the controversy ever since federal judge Lee West invalidated the registry in late September, saying the Federal Trade Commission lacked the authority to create one. Meanwhile, the ATA has held steadfast in its belief that the no-call list violates the First Amendment. Telemarketers seem equally divided about the appeal. Some say the public will ignore the ATA’s arguments about commercial free speech and get angrier at the direct marketing industry as a whole. Others say they need a final decision on this despite the $500,000 legal bill that’s going to come with it. At least one DMA member will not renew his membership this year partly because of the stance the organization has taken.

Neither decision can be the right one for everyone involved, especially with telemarketers under fire for calling people and for shipping jobs overseas. The ATA says that if it does sway the Supreme Court to overturn the decision, it will help Congress figure out a way to regulate the industry that would be acceptable to all sides. After seeing the reaction from consumers and the media a few months ago, that would be a monumental task, indeed.

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