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Bills to stop the sending of unwanted mail, which are modeled after the do-not-call phone registries, have been introduced in nearly a dozen states, raising fundamental legal questions about states’ ability to regulate the U.S. Postal Service. In the last year, 11 states have introduced do-not-mail legislation calling for the imposition of hefty fines on marketers who mail solicitations to residents whose names are on do-not-mail lists. Direct marketers, businesses that rely heavily on the Postal Service and the Postal Service itself are working vigorously to defeat the measures, arguing the bills are unconstitutional, could ruin certain businesses that advertise through the mail and will financially hurt the U.S. Postal Service, which relies heavily on mail advertising. “There’s going to be a huge amount of unintended consequences from these bills. It’ll hurt small businesses. It’ll hurt the postal business because over half the mail is advertising . . . and it’ll really dramatically hurt American commerce as the mail affects $900 billion a year in commerce and 9 million jobs,” said attorney Jerry Cerasale, senior vice president of government affairs for the Direct Marketing Association, which is part of a larger coalition fighting the proposed measures. A call to arms In a clear signal that the issue is heating up, Ian Volner, a partner at Venable in Washington who is representing Postcom, a trade association representing mailers’ interests, sent a Feb. 23 letter to Mary Anne Gibbons, general counsel and vice president of the U.S. Postal Service, asking for help in defeating the measures. “If states can regulate who gets mail, I don’t see where it ends,” Volner said. The Postal Service has confirmed its opposition to the pending legislation. Postal Service spokeswoman Joanne Veto said the Postal Service has written letters to sponsors of all of the pending bills, opposing the measures and encouraging lawmakers to reconsider them. The 11 states considering do-not-mail legislation are Colorado, Connecticut, Hawaii, New York, Maryland, Michigan, Missouri, Montana, Texas, Vermont and Washington. The bill in Vermont was introduced last week. Additional measures have been introduced in New York and Washington, as well as in New Jersey and Virginia, where registries would include people with mental illnesses and certain senior citizens. Some measures would prohibit mailing credit card solicitations to those younger than 21. Cerasale said the do-not-mail bills also raise several legal questions, among them whether or not states have the authority to regulate the Postal Service. According to Cerasale, Article 3 of the U.S. Constitution gives Congress exclusive control over the Postal Service. There’s also a free speech issue, he added, arguing that do-not-mail laws would impose on a commercial entity’s free speech rights by limiting its communication with potential customers. Proponents of the measures believe that the do-not-mail laws will have the same effect as the do-not-call registries: They will give homeowners a say over what information they want coming into their homes. “From my point of view, I should have some control over my mailbox . . . If someone wants to refuse junk mail coming to their house, I believe that we should be able to do that,” said Vermont State Representative Christopher Pearson, who last week introduced a do-not-mail bill aimed at junk mailers and credit card companies that target people who are already facing huge amounts of debt. The bills vary state to state. In most cases, marketers who mail solicitations to individuals on do-not-mail lists would face fines of several thousand dollars per violation. In Michigan, for example, violations can also result in up to six months imprisonment and a fine of up to $500. In all cases, nonprofit organizations and politicians would be exempt. There would be a business-relationship exemption as well. The success of the do-not-call concept triggered the do-not-mail legislative trend, according to opponents, who believe proponents incorrectly equate unwanted phone calls and junk mail. “It seems reasonably clear to me that what is driving these initiatives is the telemarketing situation, and they’re not comparable,” said Volner, the attorney representing Postcom.

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