Court Won’t Let Autodialers Off the Hook

WASHINGTON —  A California law that makes it illegal to use an automatic dialing device to send recorded phone messages was upheld by the Supreme Court on Monday.

The state law that was challenged by Orange businessman William Bland is part of the public utilities code that requires companies making phone solicitations to have a live person on the line. If a resident consents, a solicitor can play a recorded message, but calling with “an unsolicited prerecorded message” is illegal.

Violators can be fined or have their phone service cut off.

Prerecorded phone messages reached their annoying peak in the early 1990s when, according to a congressional study, 180,000 solicitors nationwide were using autodialing devices to call 7 million homes per day.

California is one of 43 states that has passed laws against automatic dialing devices. A federal law also bans such calls across state lines.

“Hopefully we have put this to rest and people won’t be bothered anymore,” said Ronald A. Reiter, deputy state attorney general in Los Angeles.

The National Assn. of Telecomputer Operators had challenged the state law on behalf of Bland, owner of Dry-Tech Carpet Cleaning in Orange.

Starting in 1988, Bland used two automatic dialing devices that made calls 12 hours a day. When the phones were answered, his machines played a brief recording that touted the benefits of carpet cleaning and urged listeners to press a button and leave their name and phone number.

A homeowner did just that. The response resulted in a contact by Bland’s business, and the irritated homeowner filed a complaint with the phone company. Bland was then told that he must stop using recorded messages or face a loss of his phone service.

Instead, Bland filed a lawsuit in 1994 contending the state ban violated his free-speech rights. His claim relied on a 1943 Supreme Court decision that struck down city laws against door-to-door soliciting.

But a federal judge in Los Angeles and the U.S. 9th Circuit Court of Appeals in San Francisco upheld the state ban on recorded phone messages, noting that Bland retained the right to call customers with a live person on the line.

That approach is too expensive for a small business, said Los Angeles attorney Rex S. Heinke in his appeal to the Supreme Court on Bland’s behalf. He asserted the state law violates the First Amendment because it “effectively forecloses an entire method of communication.”

The justices, however, dismissed the appeal without comment in Bland vs. Fessler.

Bland, 35, said he doesn’t like receiving telephone calls from solicitors any more than the next person who’s had dinner interrupted by a persistent salesperson pitching a product.

“I don’t get a charge out of interrupting someone’s dinner,” Bland said. “It was a quick, electronic message that lasted all of 10 seconds. If you were out to tie up someone’s phone, I’m sure you could do it a lot more effectively with a live person.”

The electronic solicitations perked up Bland’s business. By 1994, with two machines dialing potential customers, Bland had six carpet cleaners on his payroll.

Then Pacific Bell threatened to shut off his service for using technology that had been outlawed in California. Bland said he stopped using the machines rather than have his phone service terminated.

His carpet-cleaning business began to stall, he said. Bland’s company now has three part-time employees. “Back then, on a day like today, I would have had 24 jobs,” he said. “Today I’ll be lucky to finish five.”

Bland defends the machines as a viable alternative for small businesses that can’t afford to take out advertisements in more costly media, but state regulators see the Supreme Court action in a different light.

“This is a vindication of the effort in California and 42 other states designed to protect citizens from abusive practices by computerized telemarketers,” said Mark Fogelman, an attorney for the state Public Utilities Commission in San Francisco. “These people are willing to inconvenience, annoy or harass hundreds of citizens in order to find a few sales prospects.”

The decision is also good news for those who are upset by “junk faxes” from advertisers. The 9th Circuit Court has also upheld the new laws against unsolicited ads over the fax machine and rejected the industry’s free-speech claims, Fogelman said. That issue will likely be appealed to the Supreme Court later.

Still, the rulings upholding laws against prerecorded phone calls do not guarantee that residents will never receive another prerecorded phone call, Fogelman said.

“If people continue to get these calls, they should complain to their phone company,” he said.

Bland said that he’s bemused by the case reaching the Supreme Court.

“I have a friend at UCLA law school who’s now studying my case,” Bland said. “It is kind of weird. Not everyone ends up in the U.S. Supreme Court. But if you’re going to the Supreme Court, you would like to win.”

Bland said his legal fees for the case have topped $160,000.

Savage reported from Washington and Johnson from Orange County.