Double Jeopardy Over State Do-Not-Mail Bills

By George S. Isaacson

Competing Do-Not-Mail Arguments

Legislators and activists, advocating or opposing do-not-mail offers, have elaborate reasons for feeling one way or another about direct mail. Below are some of their arguments:

Advocates of Do-Not-Mail

Direct mail is bad for the environment because it wastes natural resources and exhausts scarce solid waste disposal sites;
it intrudes on recipients’ privacy by foisting on them unwelcome materials and accessing data sources that invade privacy;
it places a burden on recipients for disposing of unwanted promotional materials; and
it imposes on consumers’ time and patience, because many marketing messages are repetitive and poorly targeted.

Opponents

Direct mail improves the flow of information about goods and services available to consumers;
it’s consistent with America’s commitment to “free speech,” including vibrant commercial speech;
it stimulates the economy by (1) creating jobs in the direct marketing industry and (2) supporting the vital consumer sector of the economy; and
it’s key to maintaining the U.S. Postal Service and thereby avoiding a reduction of mail services for all residents and businesses. (Roughly one-third of USPS revenue is derived from delivering advertising materials.) —GSI

Last year, 12 states had do-not-mail legislation under consideration. But none of the bills were enacted from those states, which included Hawaii, Illinois, Maryland, Michigan, New Hampshire, New York, North Carolina, Pennsylvania, Rhode Island, Tennessee, Vermont and Washington. In most instances, they died at the end of sessions when the legislatures adjourned.

This year, however, bills already have been refiled in some states, and new bills have been introduced in Connecticut, Florida and New Jersey. With varying enforcement mechanisms, the laws would prohibit mailing unsolicited direct marketing materials to persons who enter their names and addresses to state-maintained registries.

A Familiar Model
Legislation seeking to limit unwelcome mail generally is modeled after the federal National Do Not Call Registry established by the Federal Trade Commission (FTC) in 2003. Few pieces of legislation have engendered such strong and favorable public support. To date, more than 170 million telephone numbers have been registered — 62 million in the first year and almost 25 million more last year alone. Americans clearly don’t want uninvited phone calls.

Congress has reinforced the anti-telemarketing rule by passing the Do Not Call Improvement Act, which assured that telephone numbers in the registry won’t be removed automatically.

The FTC has put teeth into Do Not Call through aggressive enforcement actions. Orlando, Fla.-based Westgate Resorts recently received a civil penalty of nearly $1 million. Accumen Management Services agreed to pay more than $275,000 to settle charges. The FTC claimed these companies engaged in outbound telemarketing to consumers whose phone numbers were on the Do Not Call Registry without obtaining their express written consent or having an “established business relationship” with them.

Show It’s Under Control
The proven popularity of safeguarding American families from dinner disruptions has emboldened groups advocating do-not-mail laws. They’ve built their cases around both privacy and environmental concerns. The rhetoric can get quite harsh. The Tennessee bill, for example, refers to the proposed registry as a “junk mail opt-out list.”

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Legal Matters: Double Jeopardy Over State Do-Not-Mail Bills