630-393-2370 pci@privatecitizen.com

P. O. Box 233 Naperville, IL  60566

Mr. Boettcher - Marketing Director
American Telemarketing Association
4605 Lankershim Blvd, #824
North Hollywood, CA 91602
                                                                                                                               June 15, 1998
Dear Mr. Boettcher,

Last week we chatted by phone about a 'Letter to the Editor' published in the June 8, 1998 Teleservices News. The President of the American Telemarketing Association (ATA) Mary Weyand, wrote it in response to an earlier (May 8th) Letter from Private Citizen member, Russ Smith. He outlined how the ATA, the Direct Marketing Association (DMA) and Telewatch seemed more intent on protecting telemarketers from the citizens they annoy than visa versa.

Of course, such a 'circle the wagons' attitude would be appropriate were it not for the claim of these same outfits that self-regulation works to protect consumers privacy, and is preferable to truly meaningful and effective government regulation. The telenuisance industry's failure to self-regulate is described, to some extent, in Mr. Smith's letter.

My reading of the ATA's June 8th response left me with questions, since much of what Ms.Weyand claimed was either simply not true or an obfuscation. To wit:

"If the company fails to comply with that [do-not-call] request the consumer may take separate action through the courts." NOT TRUE 

• Concerning a violation of a do-not-call request, court action is available only after two calls are made within a twelve-month period.

• Nevertheless, Private Citizen members now has the expert commentary of Ms. Weyand to assist us in suing, and prevailing, after such single call violations.

"In addition, consumers can elect to contact the DMA's Telephone Preference Service [TPS] to have their telephone number added to an industry-wide do-not-call list." NOT TRUE

The TPS is not an industry-wide do-not-call list. Indeed, the DMA explicitly states that the TPS is intended for use by national telemarketing firms. In a DM News May 27, 1991 article titled Why the 'No-Call' Bill is Dangerous, the DMA's chief lobbyist (Richard Barton) described the "…hundreds of thousands of local businesses that account for most of the calls…"

• Non-profits (and t'mrktg service agencies calling on their behalf) do not use it.
• Telemarketing-research firms do not use it.
• The vast majority of non-DMA members do not use it.
• Many (if not most) DMA members do not use it.

 - For example, DMA members who receive do-not-call requests or telemarketing complaints commonly suggest that such complainants register with the TPS. Yet, many of these same DMA member firms will continue to junk call TPS listees. And this will continue to be true even after the DMA 'tightens' its TPS guidelines in 1999, as planned.
 - A report by the 102nd Congress (House Committee on Energy and Commerce) found that  less than 3% of DMA members used the TPS.

"However, care must be taken to avoid making the broad interpretation that a company is in violation of the TCPA because it did not respond to a [do-not-call policy availability] 'test' conducted by an industry publication." OBFUSCATION

• The TCPA is clear. A company's do-not-call policy must be made available upon demand. It  does not matter why or who makes that demand. Indeed, the requirement that such policies be available is to assure that firms are complying with the TCPA's do-not-call policy mandate.
• The grand failure of most of those surveyed by Teleprofessional Magazine concerning do-not-call policy availability is just a reprise of the July 1994 Report Card on Compliance with the TCPA by Top Companies in the Telemarketing Industry issued by the Majority Staff of the House Subcommittee on Telecommunications and Finance. In that Report, these 'Top Companies' were given a grade of 'F' in their written policy for maintaining a do-not-call list.
• Even Ms. Weyand's own firm's behavior, TMW Marketing, seems to belie her protestations. As reported by Private Citizen member, Robert Arkow, he contacted her firm soon after Weyand became ATA's President. Arkow both e-mailed and called TMW Marketing to request its do-not-call policy. It took months before it arrived. After receiving the policy, Arkow called Weyand to ask why TMW's do-not-call policy was not available upon demand as required by law. Arkow claims that Weyand put him on hold, and that he was soon thereafter 'disconnected'.

The telemarketing industry commonly exhibits its inability to abide by government regulation. Perhaps that is why the ATA's former president, Mac Hansbrough, proudly proclaimed the following: "We have modified to our benefit, or helped to defeat every piece of federal telemarketing legislation that has been introduced. I plan to not only continue this effort, but to devote even more resources to it." (1/94 TeleProfessional Magazine) Hansbrough now heads Telewatch. Recently, 17 Telewatch members were asked to supply do-not-call policies (as required by law). Only 6 complied. Considering this level of compliance, it is clear why Hansbrough's organizations seek to thwart regulation which would result in additional circumstances of non-compliance.

Ms. Weyand's 'Letter' also encouraged those who had questions, to contact the ATA by telephone. Based on that encouragement I called for information concerning Ms. Weyand's following statement; "When there have been violations of the TCPA and the TSR, ATA members have often been called upon to serve as expert witnesses to testify against violators in court proceedings."

Specifically, I asked that the ATA identify those of its members who served as expert witnesses and testified against TCPA violators in court proceedings. Your response was: "It's our policy not to provide that information about our individual members. What you can do is check public records … and then approach those individual companies that did participate in those court cases."

Members of the ATA are involved in a marketing mechanism so reviled and intrusive that they fail even to complete their pitch two-thirds of the time, and which is generally considered to be:
- More of a nuisance or invasion of privacy = 82% (1991 Lou Harris / Equifax Corp.)
- Very annoying when made 'live' = 68% (1991 Roper / American Demographics Mag.)
- An offensive way to sell = 69% (1991 Walker Research / Telemarketing Magazine)
If you want to know the public's opinion of residential telemarketing today, just ask some of the people walking past your office building as you leave work to enjoy a peaceful dinner at home.

The ATA's protection of its members' privacy is a vivid counter-point to what ATA members do to the privacy of the millions of folks who just want to be left alone in their final sanctuary; their homes.

In recognition of the ATA's insistence on protecting its members' privacy, I ask that the ATA identify (with name and address) the plaintiffs who benefited from ATA expert witnesses who testified against TCPA violators in court proceedings. Fulfilling this modified request will not be adverse to ATA policy, since it does not require the identification of ATA members. I look forward to your response, as it will afford the ATA an opportunity to further exhibit its remarkable character and honesty.

Sincerely,

Robert Bulmash, President

cc: Illinois Secretary of State / House Telecommunications & Finance Sbcmte
      Rep. Edward Markey & Dennis Hastert / Senators Richard Durbin & Ernest Hollings