Scenarios for Enforcement Services

  We do not think they will be necessary

We believe in voluntary compliance by direct marketers. These sketches of two hypothetical enforcement services that could be provided by anyone with a PC are included only to make it absolutely clear why the will of people on the Web must prevail in the near future. Once direct marketers understand this, nobody will need enforcement services. The mere possibility should be enough to convince them.

  Consumers now have the power to send bulk mail too

The first method of enforcement is based on the fact that most direct marketing organizations have made themselves accessible at no cost to consumers, via email and forms on the Web. It's now just a small amount of work for someone to build a software package that sends canned opt-out messages to the top 500 direct marketing companies, with only about two minutes attention from the user.

We dubbed this kind of software DARTSORT: Direct Automated Request To Stop Objectionable Renting and Touching. (In direct marketing slang, any act of telephoning, mailing or making contact in any other way is called ``touching'' the consumer. ``Renting'' a name means providing it (and possibly other information) to another company for a fee.)

  If businesses can share lists of consumers' names and addresses...

Why shouldn't consumers share lists of businesses' names and email addresses? (Share and share alike.) By downloading programs and a public database of the relevant companies' telephone and fax numbers, email and postal addresses, and WWW form details, a consumer has the ability, with very little cost or effort, to send hundreds or even thousands of opt-out messages.

  On the Internet, everyone knows you can bulk mail

It's a fascinating consequence of the plummeting cost of computing and communications technology that private individuals can now send out tailored messages in volumes that previously only large organizations could afford. That's why we named DARTSORT after the U.S. Post Office's CAR-RT-SORT bulk mailing acronym, which for many years appeared above the name of the addressee on most of the 70 billion of pieces of direct mail they delivered annually. Only a tiny fraction of this mail gets a response, but with email it would be easy for consumers to generate a far larger number of opt-out replies, without feeling guilty about wasting trees.

  DARTSORT would quickly become obsolete

Although DARTSORT might be popular, companies could try technical ways to evade or process the messages at low cost. So we started thinking ahead to how the enforcer could make this difficult. One possibility is sending the opt-out messages by fax-modem. But the ultimate answer we came up with appeared far more powerful: DOOMCALL. It's similar to DARTSORT, except that the opt-out messages are delivered by telephone using an artificial voice. We have no intention of offering such services ourselves (it would be against our principle of never charging consumers any fee for our services). We just make two observations.

1. Such a service appears to be suitable for fast, profitable, and widespread deployment by a semi-anarchic network of individuals who have no vested interest in direct marketing, and
2. if it became popular with consumers, it could cause direct marketers considerable disruption and expense.

  What might a DOOMCALL sound like to telemarketers?

We named the hypothetical service DOOMCALL (Distributed Opt-Out Message Carriage And List Logging), but we don't claim this as a trademark because we don't intend to offer such a service.

A typical call might sound like this, with only the prerecorded phrases in the consumer's voice (let's call him Tom). The rest could be delivered using an artificial voice.

Hello boys. I'm back. This is Tom Jefferson calling [Junk Pusher Corporation's] Customer Service on [555-555-5555]. Parts of this call may be recorded for quality assurance and verification purposes. I want to opt out of your direct marketing programs. Please press 1 when you are ready to begin taking the details. [The previous sentences would repeat until the called party presses 1.] Thank you. If you need help at any time, press 4. First I want my residential phone number to be put on your Don't-Call List. Please press 2 if your company no longer makes telemarketing calls, otherwise press 1 when you are ready to take down my name. [Previous sentences repeat if necessary] My full name is Thomas Jefferson. Press 2 if you need this spelled out letter by letter. Press 1 when you are ready for my street address.'' [And so on...] Now to confirm you have the details recorded, please read them back, then identify yourself and your company and say "We were asked on [today's date] not to call this number for the next ten years." Press 1 when you're finished.

  How a customer might order DOOMCALL services

Here's a sketch of how providers might provide these services to our fictitious consumer Tom.

1. Tom selects a DOOMCALL provider, possibly from a Web page listing them.
2. Tom makes arrangements (probably via a Web form) to pay a few dollars.
3. He includes a URL for his Web pages where the DOOMCALL provider can find his JUNKBUSTERS DECLARATION (or he could email it).
4. The provider gives him an account number and a telephone number local to him, which he calls.
5. Similar to the way that voicemail systems are set up, a prerecorded voice prompts him to enter his account number, then to speak his name and street address, which are recorded.
6. Tom then hangs up and leaves the DOOMCALL provider (who might be abbreviated to DOOMCALLer) makes bulk automated calls to direct marketing companies over the next few days.
7. An additional step might be included: the DOOMCALLer could send Tom a list of the companies they plan to call, for Tom to amend if he wishes, and sign indicating his authorization.

  List logs provide a convenient record of notification

After making an adequate number of attempts to complete calls to each of the numbers specified by Tom, the DOOMCALLer would email him a ``list log'' reporting information such as which companies were reached and when. Tom might want this information if he decides to sue a company for making telemarketing calls to him after the notice was delivered.

  You've got their number

Whenever Tom gets another telemarketing call, he can ask the telemarketer for the organization's telephone number (which they are required by law to provide) so he can report it by email to his DOOMCALLer. The DOOMCALLer can inform Tom by return email whether and when an opt-out message had previously been delivered to the telemarketer on his behalf, so he can tell whether the call was made illegally. They could also place the number on their list of companies to be DOOMCALLed on behalf of all their other subscribers.

Telemarketers might discover that the price of calling a single DOOMCALL subscriber can be a sudden barrage of thousands (or perhaps hundreds of thousands) of opt-out calls. Consumers would be using the same principle on which NATO was founded: an unwelcome intrusion against any member is met by a concerted response from all the others. DOOMCALLers would probably consider such ``standing instructions'' desirable, because it would give them an ongoing relationship with their customers.

  DOOMCALL would be very economical (to consumers)

DOOMCALL services could probably be provided at very low cost to consumers, perhaps between $0.003 and $0.08 per call. The cost to the direct marketer called would be far greater of course, because each call ties up a Telephone Sales Representative: the direct cost would probably exceed a dollar, and possibly a far greater amount in opportunity cost because a TSR can't take orders or call anyone else while processing an opt-out transaction.

  Dying for some payback?

Consumers who have been angered by telemarketing calls in the past might pay, say $20 to have several hundred telemarketers called, and look through the huge resulting list log with a gleeful feeling of revenge at finally getting back in kind at telemarketers for the unwanted interruptions they have suffered over the years. It is interesting to speculate on what fraction of American consumers would pay $2 to have the top 50 telemarketers called, and to multiply that number by the cost that each company would have to pay to process those opt-out requests. Rather than risk this expense, most telemarketers will probably prefer to comply with DECLARATIONs directly.

  A new cottage industry of part-time opt-out rebels

Thanks to the Internet's emerging ability to transact micropayments, ordinary consumers could also become suppliers of DOOMCALL services. Here's how it might work. Sally advertises on the Web as a ``cottage DOOMCALLer'', specifying her area code, exchange, and local calling area. This allows anyone to match her capabilities to a list of direct marketing companies that have telephone numbers in that area. Suppose that the spare phone line that she uses to dial up her ISP is on a plan that gives her unlimited local calls. Before leaving for work at 8am each day, Sally downloads to her PC a file of opt-out requests to be fulfilled, and sets them going. By the time she comes home at 6pm, the phone software on her PC might have completed 200 calls, at almost no cost to her. Assuming she is able to average revenue of $0.03 per call, this amounts to $6 per day, or about $120 per month. (This use would be subject to the local phone company's regulations concerning the conduct of residence versus business accounts.)

  Consolidators turn independent cottage suppliers into a national network

A secondary market might then emerge, consisting of ``DOOMCALL consolidators'' such as Andrea. She recruits a team of cottage suppliers at points across the country, so as to obtain access to all major telemarketing operations and companies using their service. Andrea can then offer consumers ``one-stop opt-out shopping'' with the convenience of a single payment and a collated report. By adding a margin of merely $0.01 per call to a squadron of 100 cottage suppliers, a consolidator might coordinate approximately seven million calls per year, earning more than $70,000 for a home business that can be almost completely automated.

  Isn't there a law against this kind of thing?

The question of the legality of DOOMCALL operations would be a matter for the providers to determine for themselves before offering the service. Nothing here should be interpreted as legal advice to direct marketers, prospective DOOMCALL providers, or anyone else. We simply publish one (possibly incorrect) opinion we have received on this matter, from someone we will call Portia (not his or her real name). Portia made the following six points based on her reading of the U.S. Telephone Consumer Protection Act (TCPA, 1991, 1994) and related FCC regulations. Readers with any interest in the question will want to make their own enquiries to determine whether they agree with her. Any lawyers who wish to comment (gratis) on Portia's opinion are welcome to do so. If any telemarketers find errors in it that would give them an effective defense against DOOMCALLers, we would welcome the chance to make a correction.

(Start of Portia's opinion)

1. The TCPA's restrictions on the use of automatic telephone dialers (autodialers) do not apply to calls made to business numbers. Furthermore, an opt-out message is not a solicitation. Various states place restrictions on calls made within the state, but as the Act itself points out in Section 2(7), these prohibitions can be evaded by interstate operations.
2. The use of autodialers to call toll-free numbers is prohibited, so a local number would have to be called instead. (To a DOOMCALLer with a large network this cost difference would probably not be significant.)
3. The TCPA also prohibits using autodialers ``in such a way that two or more telephone lines of a multi-line business are engaged simultaneously.'' This could be presumed to refer to calls originated by the same entity, since it is in general impossible for a caller to determine whether another entity is currently calling the same business using an another autodialer. Any single consolidator would probably be obliged to ensure that the cottage DOOMCALLers under her control did not overlap. But if a large number of consolidators were to begin operations, some companies could expect to have more than one line engaged with opt-out calls.
4. The TCPA requires telemarketers to comply with requests from residential telephone subscribers not to receive calls, and to record such requests at the time they are made. (In another reference added later, the FCC's wording actually anticipates that the do-not-call message will be delivered by telephone (as opposed to mail, for example)). The basic requirement appears very broad, and I see nothing in it to prevent consumers from using an agent to transmit such opt-out requests by prerecorded telephone message prior to receiving any calls.
5. The TCPA imposes no restrictions on direct mail, although large mailers do generally maintain do-not-mail lists. However, I see nothing in the TCPA that would prohibit DOOMCALLing of direct mail companies to ask them not to send mail.
6. Some direct marketers might try to use Caller-ID (calling party number information) to reject or ignore calls made from numbers that they know have been delivering opt-out messages. In the case of telemarketers this could be regarded as a willful violation of their obligations under the TCPA, and consumers could request the FCC to take enforcement action. Also, a pro-consumer state attorney general could choose to take action to enforce the rights of consumers who reside in his or her state to use this means of opting out of telemarketing calls. Direct mailers would not be subject to such constraints (though they are subject to others); I see no legal impediment to a policy of rejecting calls in this manner, though there may be other reasons not to do so.

  But all this is so unnecessary

As we said earlier, we hope that the vast majority of direct marketing companies will soon make their best endeavors to comply with DECLARATIONs, so that no consumer will ever actually need to use or pay for the services of a DOOMCALL provider. If you create your own DECLARATION you will see that we included an option to allow you to state whether you wish to receive direct marketing solicitations from providers of enforcement services. We included this because we wanted everyone to see how widely such services might be adopted. As a side-effect this also makes it very easy for any providers to find and contact prospective customers. So, should direct marketers take a consumers' expression of interest in DOOMCALL providers as a warning that they will use them if their permissions are DECLARATION are disobeyed? That is a question for each direct marketer to judge before contacting them. The wrong call could be expensive.

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