Telemarketers are divided over the Supreme Court challenge to the national no-call list, with some favoring the American Teleservices Association's all-or-nothing fight and others siding with the Direct Marketing Association's low-key approach.
Edd O'Connor, president of Consumer Advantage Research & Marketing, formerly Tel-A-Sell, said he will not renew his DMA membership this year, partly because the DMA isn't pursuing the no-call case. The DMA has long treated the teleservices industry as its “stepchild,” he said.
Among DMA supporters, a conviction exists that even in the event of a Supreme Court victory, Congress simply would pass legislation to bring back the no-call list and skirt the court decision. Congress did just that last year, passing legislation in a single day after a lower court ruled that the government lacked the authority to create a no-call list.
“We still don't want to call people that don't want to be called,” said Joan Mullen, industry veteran and vice president of special projects at ORC ProTel. “The national do-not-call list is never going to go away.”
Divisions between the two sides don't necessarily fall along the lines of loyalty to one organization or the other. Teleservices consultant Sandy Pernick, a former ATA chairwoman who is now more active in the DMA Teleservices Council, said she supports the ATA's effort but acknowledges that her position is in the minority among DMA members.
“If the ATA has the resources to go for it, they absolutely should go for it,” Pernick said. “Otherwise, we would never know.”
The DMA calls itself the “largest trade association in the world representing the telephone marketing industry” and notes that its members account for 80 percent of the industry. However, the ATA is the only organization in the United States dedicated solely to telemarketing.
In an e-mail obtained by DM News, DMA president/CEO H. Robert Wientzen told his teleservices members that the association had both their interests and those of the organization as a whole at heart when it dropped its no-call case. DMA legal advisers did not give a Supreme Court challenge good odds of success, he said.
“Importantly, they also advised us that the Supreme Court only accepts and hears 2.3 percent of the cases presented to it each year,” he wrote. “While we could have appeared to be 'fighting to the bitter end,' it would not be a battle we'd be likely to win, and we would have more negative press to boot. Finally, to engage in further costly litigation when DMA members were prepared to adhere to [the] no-call list anyway would not be a judicious use of resources.”
Those who side with the DMA said they are driven by a concern that the public will ignore First Amendment arguments advanced by the ATA and instead see efforts to eliminate the no-call list as an attempt to infringe on their privacy rights. Negative headlines, television reports and angry editorials that exploded last fall when the industry won two lower court cases are fresh on the minds of many.
“Consumers are going to be angry about anybody doing what they perceive to be some sleazy legal maneuver,” said teleservices consultant Jon Hamilton. “They're not going to understand the constitutional issue.”
Others said the industry's image is so battered that it can sink no further. They also noted that because of new regulations, clients are looking to overseas providers in order to lower costs.
“We've taken a beating as an industry,” O'Connor said. “I've taken a beating as a company because of outsourcing and clients being concerned about the DNC list. This law goes after our clients.”
