It's common advice for those new to real estate sales: Pick up the phone. Call local homes 100 times a day, every day, to find listings and buyer clients.

But within the coming year there may be substantial cold calling limits. The Federal Trade Commission says consumers should have the right to ban telephone solicitations. And industry -- in the form of the Direct Marketing Association (DMA) -- is crying foul.

The FTC wants to establish a national "Do Not Call" registry. The existing Telemarketing Sales Rule (TSR) would be expanded so that consumers anywhere could sign up one time and most unwanted calls to the home would be automatically banned.

But wait, says the DMA.

"Telephone marketing generated $668 billion in 2001 and employed six million," according to the Association. Moreover, for the past 25 years the DMA has maintained a do-not-call service. To this point, says the association, more than 4 million people have signed up. In addition, more that two dozen states have do-not-call programs for citizens.

"The telemarketing sector is an essential part of our communications and marketing industry," said H. Robert Wientzen, president & CEO of the DMA. "The government may be overstepping its boundaries by spending taxpayer dollars to limit communication -- that is protected by the First Amendment -- to American consumers who benefit from and shop via telephone solicitations."

According to a DMA-commissioned study, direct and interactive marketing sales in the United States exceeded $1.86 trillion in 2001, including $110 billion in catalog sales and $28 billion in sales generated by the Internet.

Pros and Cons

A key point made by those opposing the FTC plan is that it violates the right to free speech. As Justice William O. Douglas wrote, "the right of freedom of speech and press includes not only the right to utter or to print, but the right to distribute, the right to receive, the right to read, and freedom of inquiry, freedom of thought, and freedom to teach."

Cold calling, to telemarketers, is nothing more than a way to exercise their "right to distribute" information.

No less important, say telemarketing advocates, cold calling may be the cheapest form of communication available to new businesses, firms without the huge budgets or established client lists. Small companies, new businesses, and minority entrepreneurs would be the parties most affected if the new rules went into effect.

In addition, says supporters, with the country in a recession now is the wrong time to limit cold calling, an industry which directly and indirectly employs millions of people nationwide.

Alternatively, those who support the ban make several points.

• The DMA do-not-call service is only open to DMA's nearly 5,000 members, not the millions of commercial callers found nationwide.

• State do-not-call services may not stop calls from outside a state.

• Do-not-call services may apply to commercial ventures but not charities and political parties. Privacy advocates say that a ringing phone from a charity is no less annoying than a ringing phone from a commercial telemarketer.

• Consumers have a right to privacy. As Justice Oliver Wendell Holmes wrote in the Olmstead decision, "the right to be let alone" is "the most comprehensive of rights and the right most valued by civilized men."

• The government is not limiting free speech. Instead, consumers are gaining the right to opt into a system to end unwanted telephone calls.

Who will win? It's too early to tell, but privacy advocates will surely endorse the plan and marketing firms will no doubt oppose it. While the rules may evolve in the coming months, it would not be surprising if the matter winds up in the courts and remains unresolved for years.

For more articles by Peter G. Miller, please press here.

Published: January 24, 2002

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Peter G. Miller, also known as OurBroker®, is the author of six real estate books -- including The Common-Sense Mortgage -- and is the original creator and host of America Online's Real Estate Center. Peter's weekly columns appear in more than 100 newspapers nationwide, he is also published in a variety of other media outlets and he is a frequent speaker at national events and conventions. Peter welcomes your questions, comments, and news releases via e-mail at .