Wednesday, September 24, 2003

Commercial solicitation -- Win one, lose one

The New York Times had this article yesterday about California's new anti-spam law (the text of the bill, which is SB 186, may be found here). It affords a private right of action and $1000 recovery per unsolicited commercial email, as well as government enforcement. This is going to make a huge difference in email because it is particularly difficult for a spammer to know who is or is not a California resident by an email address. Score one for the good guys.

Today, according to this Reuters article, a district court in the Western District of Oklahoma found that the FTC exceeded its delegated authority by setting up the national do not call registry. The FTC claims it had authority under the 1991 Telephone Consumer Protection Act and the Telemarketing and Consumer Fraud and Abuse Prevention Act to issue its order (rather long--164 pages) creating the registry.

As the opinion describes, the FCC had an opportunity (and in the court's view, has the authority--not the FTC) to create a national do not call registry but decided not to because it claimed it was not economical and efficient for those who "by and large would like to maintain their ability to choose among those telemarketers from whom they do and do not want to hear." In short, the FCC failed to do its job, and the court found that the FTC could not do the job instead.

This is just another issue that raises suspicion that the FCC has not remained sufficiently independent from corporate interests to avoid agency capture. I am still looking for a good rebuttal on this point, but two sites are worth visiting that advocate this position--Common Cause's page on the FCC and MediaReform.Network (the group putting on a conference in Madison where all the cool people will be).

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