Ernest “Fritz” Hollings was a great man and a national hero.  He fought bravely in the Army during World War II, and then returned home to South Carolina where he began a career in law and public service.  After some time in the state legislature and a term as governor, he found his true calling:  the United States Senate.

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     For thirty-eight years, Hollings brightened the Capitol with his eloquence and common sense.  His quick wit and folksy sayings were a breath of fresh air in the stuffy world of Washington bureaucracy.  A debate against Fritz was usually a losing proposition, as one brash challenger learned when he foolishly demanded that the senator take a drug test.  “I’ll take a drug test if you’ll take an IQ test,” Hollings retorted.  Chalk up another easy re-election victory for the silver-haired statesman from Charleston.

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     Even in retirement, the senator was still distinguished among his peers.  While most politicians will proudly revel in whatever tribute is given to them, Hollings actually asked for his name to be removed from a courthouse building.  He wanted it to be renamed to honor a judge who he felt was more deserving.  Then in 2016, at the age of ninety-four, he became the oldest living current or former member of the Senate.  The youngest is Mitch McConnell, who has successfully filibustered his own thirty-fifth birthday for more than forty years.

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     But anyone who experiences half a century in politics is bound to have a bad decade at some point.  For Hollings, it was the 1980s.  First, he was made to publicly apologize to a Senate colleague after making an offensive remark about the other man’s Jewish faith.  Then his 1984 bid for the presidency, which was always a long shot proposition at best, met a quick and quiet end with his sixth place finish in the New Hampshire Democratic primary election.  Meanwhile, Hollings was getting nowhere with promoting the issues he cared about.  No one but him was interested in reinstating the military draft, and his goal of balancing the federal budget was falling more and more out of reach all the time.  If he didn’t reinvent himself soon, Hollings was in danger of becoming completely irrelevant.

 

     When a politician’s career needs a little kick in the butt to get it moving again, one of the most helpful things he can do is participate in a media circus.  This opportunity presented itself to Fritz Hollings in 1985.  A group of congressional wives, led by Senator Al Gore’s wife Tipper, had become outraged by the lyrics that they were hearing in popular music.  They demanded that offensive musical recordings be labeled and restricted to prevent young people from accidentally purchasing them and destroying their fragile lives.  After some spousal nagging in the Gore household, the matter came before the Senate Committee on Commerce, Science, and Transportation.  Several well-known musicians were summoned to the Capitol to defend their songcraft, and plenty of television cameras would be there to cover the spectacle.

 

     In advance of the hearing, the wives assembled a list of offensive rock songs that they dubbed “The Filthy Fifteen.”  Popular hits by Prince, Madonna, and Cyndi Lauper were suddenly exposed as the wicked odes to Satan that they were.  When Madonna sang that she would like to dress her listeners up with her love, these world-wise women were not fooled by the song’s seemingly innocent references to clothing.  They knew exactly what the singer meant.  “I’m a fairly with-it person, but this stuff is curling my hair,” Tipper Gore said.

 

     As the ranking Democratic member of the committee, Hollings was permitted to make one of the first opening statements.  This was the aging senator’s big chance to connect with a younger generation of voters.  He could have used this moment to demonstrate both an appreciation of modern entertainment and a deep understanding of the First Amendment.  Hollings could have defended the rights of recording artists—even that naughty temptress Cyndi Lauper—to express their artistic visions, just as he had defended his country’s freedoms during the war.  But he instead denounced the music as “porn rock” and “outrageous filth,” and vowed to do everything within his power to combat it.  “If I could find some way constitutionally to do away with it, I would,” he said.

 

     The rest of the hearing went no better for Hollings and his colleagues.  The legendary singer-songwriter John Denver was called to testify, in the hopes that he might be the one and only popular performer who was unfashionable enough to support the committee’s efforts.  Several of the senators told him how much they enjoyed his music, but the flattery had no effect on Denver.  He stated his firm opposition to censorship in any form, and criticized the record labeling plan that had been proposed by the senators’ wives.  Avant-garde musician Frank Zappa also spoke, and he compared the women’s demands to “treating dandruff by decapitation.”

 

     The final music star to testify was Dee Snider, the lead singer of the hard rock band Twisted Sister.  The band’s hit song “We’re Not Gonna Take It” had been listed as one of The Filthy Fifteen, a designation that annoyed Snider to no end.  In reality, there was nothing at all offensive about the song’s lyrics.  It was the cartoonish violence of its music video that earned it a spot on the list.  Tipper Gore had also accused Twisted Sister of producing a sexist T-shirt depicting “a woman in handcuffs sort of spread-eagled.”  Snider had never seen such a shirt, and considered this accusation to be slanderous.  He arrived with a chip on his shoulder and was in no mood to kowtow to the committee.  In his opening statement, he asserted that the federal government and the senators’ wives had no authority to judge his music or to restrict it in any way.

 

     Hollings decided to challenge Snider on this claim.  Reverting to his training as a lawyer, he invoked the Pacifica case that he thought established the government’s right to regulate indecent entertainment.  This case has its origins in 1973, when a New York radio station broadcast an uncensored George Carlin comedy routine entitled “Filthy Words.”  Carlin’s monologue listed the seven words that can never be uttered over radio or television, and provided numerous examples of their usage.  The Federal Communications Commission (FCC) received a complaint from a man who had, for some unknown reason, decided to listen to the comedy routine on the radio while his young son was riding with him in the car.  The Commission agreed with the complainant (and with the comedian) that these seven words were unfit for the public airwaves.  It then issued the ultimate sanction:  it placed a warning letter in the radio station’s administrative file.  (As we’ll see again later, the penalties for violating a FCC rule are usually either inconsequential or draconian.  They are rarely anywhere in between.)

 

     The broadcaster wasn’t willing to accept this bit of non-discipline and move on.  It contested the FCC’s authority to regulate the content of its programs.  After the radio station won the initial round before a three-judge panel, the government appealed the matter to the U.S. Supreme Court.  In 1978, the Court ruled by a slim 5-4 margin that the rules against “obscene, indecent, or profane language” on the radio were constitutional.  They were not a violation of the free speech guarantees of the First Amendment.

 

     Although the Supreme Court didn’t want to hear this language on the radio, it had no problem with the same words appearing on paper.  So, it attached a transcript of Carlin’s routine to its opinion.  Soon the Government Printing Office was churning out copies of the “Filthy Words” monologue—with “shit” repeated roughly seventy times—for distribution to libraries, schools, and law offices all over the country.

 

     Hollings was convinced that the Pacifica ruling was relevant to the issue of record labeling.  He confronted Snider with a quote from the Court’s opinion:  “Patently offensive, indecent material presented over the airwaves confronts the citizen not only in public, but also in the privacy of the home, where the individual's right to be left alone plainly outweighs the First Amendment rights of an intruder.”  But it was obvious, even from this small portion of the ruling, that Pacifica simply did not apply.  It was clearly limited to radio and television broadcasts, not to the record store merchandise being discussed by the committee.  The musician had to remind the senator of the distinction:

 

“We’re talking about the airwaves as opposed to a person going with their money to purchase an album to play in their room, their home, on their own time.  The airwaves are something different.  I think that the FCC and even MTV have done a fair job in keeping profanity, obscenity, and things like that off the public airwaves.”

 

     Hollings had no effective comeback to this.  The distinguished statesman had somehow managed to lose a constitutional law debate to a jeans-clad, long-haired heavy metal rocker.

 

     All things considered, it could have been worse.  Al Gore had been smarmy and condescending while addressing the musicians; Hollings was merely ill-informed.  However, when network news reported on the hearing, the most memorable sound bites came from the South Carolinian’s opening statement.  His over-the-top excoriations of the controversial songs, and his belligerent threats to outlaw them, were fodder for comedians.  To complete the mockery, Frank Zappa included samples of the senators’ voices in a music track entitled “Porn Wars.”  Hollings was featured prominently in this recording, with his cringe-worthy “outrageous filth” and “porn rock” lines repeated again and again for full effect.

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     The phrase “jumping the shark” had not yet been popularized in 1985, but for Hollings and his career this was a shark-jumping moment.  After the record labeling hearing, he was no longer one of the cool senators like Ted Kennedy or Joe Biden.  He wasn’t even one of the quietly efficient ones like Nancy Kassebaum or Pete Wilson.  Fritz Hollings was now, at age 63, officially an old grump.  It didn’t seem that he would ever again be a factor in an important national discussion.

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     But within a few years a new problem began bubbling to the surface of society.  A wave of computer-generated telephone calls was disrupting the lives of Americans on a daily basis.  To understand this phenomenon and why it was such a big deal, it’s necessary to first take a brief look at the history of telemarketing.

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     The world’s first telephone call was made on March 10, 1876 to a Boston man named Thomas Watson.  The strange contraption that had been sitting on his desk suddenly began speaking to him in the voice of his boss, the inventor Alexander Graham Bell.  Watson had to have been stunned by this unprecedented event.  He was probably even more surprised a few days later when he received the world’s first telephone bill.
 

     There is no record of the very first telemarketing call, but it was likely later in the day on March 10th.  As word got around town about his invention, Bell was certainly inundated with calls from patent attorneys offering to help him file a claim before Thomas Edison could steal his idea.  Later, when affluent consumers began to purchase telephones at the start of the 20th century, local merchants sometimes used the new-fangled device to contact housewives and offer them items for sale.  These calls were not always appreciated.  In 1909, a Rochester, New York woman complained to the Union and Advertiser newspaper about the frequent disruptions at her household:

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“My hands were busy moulding bread yesterday morning, when I heard the bell ring, and upon responding was told by a woman just gone into business in a Main street building, that she had a fine line of curtains, and other hangings, which she would like me to see.  Shortly afterwards an employee of a firm making extracts, solicited my patronage in the same way, and though I told him I did not wish to be annoyed again, by being called to the telephone to hear of the extracts, the afternoon brought another call from the same firm.  Last week a number of my friends and I heard over the telephone of a Shakespearian actor who was to fill a long engagement here, and we were asked by an attaché of the theater to please get our seats early, as there would undoubtedly be a rush for tickets.  These are samples of a telephone annoyance that I would like to be freed from.”

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     There was not much of a science behind telephone sales until the late 1960s.  That’s when public relations executive Murray Roman started the first specialized telemarketing firm, Campaign Communications Institute of America.  After first conducting a successful sales campaign for Ford Motor, he turned most of his attention toward political fundraising.  His company worked for both Republicans and Democrats; it was an equal opportunity nuisance.  Anyone who had given a contribution to either party could expect to be contacted and begged for more money in the next election cycle.

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     Roman soon realized that telemarketing was like singing:  anyone could do it, but few people were doing it well.  So in the 1970s, he wrote two influential books explaining how to run a profitable telemarketing operation.  He emphasized that careful planning was essential to cut through advertising clutter and make a memorable impression on consumers.  Roman’s employees never wasted their time phoning random housewives and ad-libbing a bunch of nonsense about “extracts” or “Shakespearian actors.”  They only contacted people who they believed might have a favorable response.  The agents were given a script to follow, with portions placed on index cards that could be shuffled around based on the progression of each call.  If one of the targets balked at donating $500, the agent could flip to a different card that would explain what could be accomplished for $250.  Ultimately, the donor would be left believing that he got a good deal, even though he would have been far better off never answering the phone.

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     Three developments caused telemarketing to accelerate in the 1980s.  First, the breakup of the AT&T monopoly led to more competitive pricing for long distance phone service.  Second, technology improvements such as improved dialing equipment were making call centers more efficient.  And finally, there was the invention of the robocall:  a recorded advertising message that could be delivered to thousands of phone numbers without the need for human agents.  These automated calls were used sparingly at first, but became commonplace near the end of the decade.

 

     Robocalls turned the economics of telemarketing on its head.  Since the cost of each call was negligible, there was no longer any reason to bother with buying an expensive contact list that could be used to target your message.  A single automatic dialer could call all 10,000 phone numbers in an exchange in less than two weeks.  The response rates were always well under 1%, but the ability to call so many people with such minimal effort made robocalls attractive to small businesses.  It was time to throw those Murray Roman books in the trash, because a new era had arrived.

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     By 1991, millions of robocalls were being made to Americans each day.  For most people, the automated calls were their first experience with “spam”—a term that would not be applied to bulk advertising until a few years later.  The numbers were small compared to the robocall explosion that would come twenty years later, but the effect was worse in some ways because the internet was not yet in common use.  The telephone was usually the only way to contact a friend, family member, or business without writing a letter and waiting days or weeks for a response.  And an unwanted incoming call was not just an annoyance; it prevented the phone from being used until the caller disconnected.  On one occasion, a woman in Amsterdam, New York was unable to summon an ambulance for her injured child due to a prerecorded telemarketing call that had tied up her phone line.

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     Robocall dialers were often programmed to call phone numbers sequentially.  This was a problem for large companies, hospitals, and universities that owned blocks of hundreds of adjacent numbers.  Medical paging services were hit especially hard by the nuisance.  A doctor in Pennsylvania told the New York Times that he received one of the calls on his voice pager while standing at the bedside of a patient who had just died.  He and the bereaved family members were treated to the sound of a cheery advertisement for a Hawaiian vacation.  “Nothing to lose!” the caller declared as the family wept.

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     There were few good options available for dealing with this crisis.  Caller ID and call blocking services were not widely available, and using an unlisted phone number was of no help at all.  Many states attempted to outlaw or restrict the prerecorded calls, but these laws were useless against out-of-state perpetrators.  Seriously disruptive incidents might merit a lawsuit on grounds such as “trespass to chattels” or “intrusion on seclusion.”  However, this was a bit of a reach.  These types of claims originated from the ancient common law of England, in which a typical case involved one farmer’s sheep wandering onto another farmer’s pasture.  No attorney wanted to be the one who had to analogize phone spamming to an ovine encroachment.  He or she would need a fairly elaborate barrister’s wig for that courtroom speech.

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     Meanwhile, another abuse of technology had appeared, as some businesses were now advertising by sending unsolicited fax messages.  “Junk fax” was a particularly effective way for restaurants to tell workers in nearby offices about their daily lunch specials.  A salesman would stop by his office fax machine to look for the signed purchase order he was expecting from a client, and he’d walk away with a craving for the liverwurst-and-anchovy sandwich at Podo’s Deli.  His company was then stuck paying for the ink and paper for someone else’s promotion.

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     Fixing these problems required a certain type of person:  an old grump.  America needed the kind of guy who wanted to round up lazy youths and force them into the Army.  It needed a man who would angrily smash a John Denver album upon hearing that the singer gets high from the Rocky Mountains.  America needed Fritz Hollings.

 

     Hollings’ position on song lyrics had been vindicated somewhat since the debacle of 1985.  Elitists had laughed at his warnings that the music industry was on the road to damnation, but now there were rap groups recording explicit songs like “Me So Horny” and “F--- tha Police.”  The robocall epidemic seemed like another slippery slope.  If nothing was done, the problem would get worse and worse.  The senator hadn’t fought the Nazis only to see his countrymen subjugated by these annoying new-fangled machines.

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     Hollings proposed legislation, entitled the “Automated Telephone Consumer Protection Act,” that would ban almost all of the robotic calls as well as junk fax advertising.  His forceful Senate speech in support of the law is an oration of lasting beauty.  It deserves to be remembered in the same way that we think of the Gettysburg Address or the soliloquy from Hamlet:

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“Computerized calls are the scourge of modern civilization.  They wake us up in the morning; they interrupt our dinner at night; they force the sick and elderly out of bed; they hound us until we want to rip the telephone right out of the wall.  ...  It is telephone terrorism, and it has got to stop.”

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     The House of Representatives was already looking at the same issue, but from a different angle.  As with the record labeling hearing from several years earlier, congressional spouses helped spur the legislators into action.  Massachusetts Representative Ed Markey’s wife, a doctor, had complained to him about the automated advertising calls that were being made to her pager.  Markey spoke with a colleague from New Jersey, Representative Marge Roukema, about the matter.  Roukema’s husband was a psychiatrist.  Perhaps he could prescribe something that would help Markey’s wife cope with the problem?

 

     But Dr. Roukema’s pager was being bombarded with robocalls too, and he knew that there wasn’t a pill strong enough to take away the feelings of helplessness and rage that they induced.  So Markey came up with a better idea:  he would make the calls illegal.  There would be plenty of chances to medicate everyone later if the law didn’t work out.

 

     Markey’s bill was titled the “Telephone Advertising Consumer Rights Act.”  It offered weaker rules against robocalls than the Hollings bill did.  Doctors with pagers would be protected from the automated calls; the average family with a landline phone, not so much.  However, Markey’s proposal also laid the foundation for a Do-Not-Call list that would prevent telemarketers—even those that used live agents rather than recordings—from calling households that signed up.

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     The American people were clamoring for action, but the legislation faced a hurdle.  A powerful lobbying group, the Direct Marketing Association (DMA), was looking out for the interests of telemarketers.  It would be a challenge to pass either of these bills without its support.

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     Fortunately, the DMA was dominated by traditional Murray Roman-style marketers who saw the new autodialing machines as a threat to their business.  They predicted—quite accurately—that the scattershot approach of the robocallers would eventually cause consumers to ignore other phone solicitations that had been more carefully targeted.  Outlawing the automated calls would be just fine with them.

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     The DMA’s bigger worry was Markey’s Do-Not-Call list.  However, this proposal relied on regulations that would be issued by the FCC, and nobody knew what those would be like.  In the end, the lobbyists decided to let this vague part of the law go through.  They could take their chances later in front of the Commission, or maybe even in court, where the public’s low opinion of telemarketers would be less of a factor than it was in Congress.

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     The Hollings bill passed the Senate by a voice vote on November 7, 1991.  The House approved the Markey bill on November 18.  Now it was time for negotiators to resolve the differences and produce a single piece of legislation that could pass both chambers.  This congressional compromise process worked much more efficiently than it does today.  No one was called a liar or a racist, and not once did someone stomp his feet and threaten to shut the government down if he didn’t get his way.  Very quickly, the final bill was ready.

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     The new law would be titled the “Telephone Consumer Protection Act” or “TCPA.”  It looked a lot like the bill Hollings had written, with Markey’s Do-Not-Call list tacked on, but one of the most important parts of the Senate bill didn’t survive the negotiation process unscathed.  Some House members fretted that Hollings’ proposed ban on robocalls to homes would endanger innocent uses of the technology, like a business telling one of its customers that an order was ready to be picked up, or that an invoice was due to be paid.  A congressman from Oklahoma  wanted reassurance that power companies would still be able to robocall customers to warn them of impending outages.  Hollings had included a couple of exemptions designed to cover these types of things, but there was still some doubt about how the law would be applied.

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     Texas Representative John W. Bryant had a more serious concern.  There was a company in his district, MessagePhone, Inc., that had invented a clever way to contact people who aren’t able to answer their phones.  For example, suppose a woman is on her way home from a business trip.  Before she boards the plane, she wants to call her husband and remind him to tape The Golden Girls.  (Remember, this was 1991.  People did things like that.)  However, he’s out fishing with a couple friends and she can’t reach him.  MessagePhone to the rescue!  The woman records a message, and the service dials her house every fifteen minutes until her husband finally returns, picks up the ringing phone, and hears her plea.  He thinks, “Oh good, she’s just now getting on the flight in Newark.  I still have a few hours.”  The wife walks in twenty minutes later to find her husband and his fishing buddies trying on all of her dresses and waxing each other’s armpits.  This awkward moment was brought to you by MessagePhone, the lame forerunner to voicemail.

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     An inflexible rule against prerecorded calls would put this innovative company out of business.  So, Bryant and several of his colleagues successfully argued for the law to be watered down.  Instead of banning almost all robocalls to homes, as Hollings had originally planned, the FCC would have some discretion to decide which ones were OK.  MessagePhone would, presumably, be allowed to exist for another three or four weeks before becoming obsolete on its own.

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     Congress needed to wrap things up before Thanksgiving so that everyone could go home.  And they succeeded—barely.  On Tuesday of Thanksgiving week, the House passed the merged bill.  The Senate approved it on Wednesday.  The final version of the law included rules against many types of automated calls, a ban on junk fax, and the beginnings of the Do-Not-Call list.  One giddy lawmaker inexplicably threw in a provision to encourage more AM radio stations to operate at night.  This bill had something for everyone.

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     There was only one last obstacle:  President George H.W. Bush needed to sign the legislation.  This wasn’t a sure bet, because Bush’s desk was known as the spot where good ideas went to die.  Representative Roukema still ruefully remembered how, in the previous year, he had shot down the family leave bill that she had urged him to approve.  Much of her re-election campaign was then spent apologizing for the president.  Would this be another political disaster?

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     Bush was unenthusiastic about the bill, to put it mildly.  He considered himself to be primarily a foreign policy president.  He was most comfortable when he was bombing the Middle East or barfing on another world leader.  Why was Congress wasting his time with domestic legislation like this?  Besides, if there was anything Bush hated more than broccoli, it was government restrictions on commerce.  To him, the TCPA looked like just another economy-strangling, job-killing regulation that would move the nation one step closer to Marxism.

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     But the president knew that it wasn’t worth fighting against a measure that had such widespread support in Congress and among the public.  On December 20, 1991, Bush signed the TCPA into law as an early Christmas present—and late Hanukkah present—for America.  He did so while simultaneously encouraging the FCC to limit the law’s reach so that “legitimate business activities” would not be affected.  This is how you get to be president, boys and girls:  learn how to take both sides of an issue.

 

     Although the spotlight was on the White House that day, the real hero was Ernest “Fritz” Hollings.  His time in the Senate had finally paid off with a law that would have an impact for decades to come.