Black September

Most DMers entered the week of Sept. 22 focused on their fall sales and perhaps getting ready for the DMA conference.

By week's end, their field was in the middle of a regulatory crisis, and they were being pilloried in every newspaper in the country.

We won't bore you with a rehash of every strange thing that happened, but the jurisdictional tumult was set off by a pair of legal rulings.

The first decision, stating that the FTC lacked the authority to run a do-not-call list, fueled an outpouring of resentment, and, in the words of H.L. Mencken, “that resentment rolled up enough force to attract the attention of the quacks who make laws at Washington.”

The second ruling, issued just as Congress was ramming through a bill to give the FTC that authority (which President Bush quickly signed) stated that the do-not-call list violates the First Amendment. Readers wrote in, calling it a public relations disaster.

Assuming that is true, who is to blame for the week of bedlam?

It would be easy to blame that new TV pundit H. Robert Wientzen. After all, it was his group, the Direct Marketing Association, that filed the suit that set off the whole thing.

But the DMA was the victim of bad timing. If Judge West had issued his order last March, or even in July before 50 million people had signed up for the registry, the reaction would have been more muted.

In any event, it looked at deadline as if Wientzen had scored at least a few points by pledging that his group's members will honor the registry. (Non-DMA members may well continue calling and annoying people.)

And there's no reason to blame the American Telemarketing Association, which filed the suit that resulted in the second ruling. Both cases involved questions that should be litigated before the do-not-call idea spreads to other media.

That's a real threat because several other privacy-related crises seemed to be merging that same week, creating an almost perfect storm.

For one, JetBlue Airways and Acxiom were accused of violating their own privacy policies by providing data to the Defense Department.

For another, the country seemed headed for a showdown over where federal authority begins and state authority ends. The question, in a nutshell: Will California's privacy laws be accepted as the national standard?

This is all of a piece. People are fed up in general with advertising. It pops up on their computer screens. They can't escape it even at the movies.

California isn't the only state straying beyond the bounds of rationality. A Massachusetts Republican is pushing a bill to create a state do-not-mail list. That's right — postal mail.

But getting back to telemarketing: Many DMers — those who don't like being called at home — believe that it's time to cut off the infected limb. And they may be right.

It's hard to get even two people to agree on anything. But we should listen when 50 million Americans agree that they don't want to be shilled by phone.