The link is correct. Must be a temp problem at the site.
DO-NOT-CALL Campaign: US Legal Basis
by MadApostate 15 Replies latest jw friends
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Free Eagle
Interesting.... In my town, the last time I can recall JW's going door-to-door was about five or six years ago. My husband always seems to have the pleasure of dealing with them.
They would ask him if he wanted to hear the "Good News". He did not know what they were talking about, and said sure, "I wouldn't mind hearing some good news every once and a while." Oh he knew that they were JW's and that they were looking for new recruits (but at the time neither of us knew the entire story, as we do now). Then they would get into the saving part - what would get them is when he would ask, "What exactly are you trying to save us from?" He would tell them he thought he was a good person, and then ask them, "Do you consider yourself a good person"? The JW's were probably shaking their heads in frustration. I wish I had been around to see the encounters. They would leave a pamphlet and probably had a headache.
We live between two cong's - each about 6 miles away from us - to the north and south. The door-to-door visits ceased. However, around March in each year, we receive in the mail a pamphlet, and a handwritten invitation to receive a "free bible study" and a schedule for the cong's weekly services and meetings. I think my town has an ordinance regarding door-to-door visits, etc.
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Julie
It has been my experience that there is no need to take legal action to keep JWs away. The last time they came knocking at my door, I was mighty nice to them, invited them in and sat and talked with them.
Then I merely pointed out the countless scriptures in the bible that are horrific and most un-godlike. The reason given for this was because I told them I doubted the bible was god's word. My but they were certain they could easily convince me otherwise. I set out to show them my reason for doubt. Easy-peasy as I have literally hundreds of such passages marked for easy reference. As I went through and asked for explanations, well you can imagine the dance they had to perform in order to justify the horrors. They were not able to do any better than some of the most zealous fundies here.
It soon became clear to them that they were trying to achieve the impossible. They couldn't get out of here fast enough and I haven't seen any JWs at my door since. We didn't even have to get into JW doctrine or any such nonsense.
Not only is this an effective method but boy is it fun to make some self-righteous, haughty guy (acting like a used car salesman--high pressure) stammer and stutter with nary an answer. They didn't even think to ask where I got the NWT bible which is the one I was using.
It was a mighty satisfactory 15-20 minutes.
Julie
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MadApostate
Well, the link is still not working. Here is the lengthy text:
..................................File Area: USCases
Kenneth Tillman v Distribution Systems of America
Kenneth Tillman, et al., respondents, v
Distribution Systems of America, Inc., appellant, et
al., defendant.
95-05388
SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND
DEPARTMENT
1996 N.Y. App. Div. LEXIS 9926
April 17, 1996, Argued
October 7, 1996, Decided
NOTICE: [*1] THE LEXIS PAGINATION OF THIS
DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE
FINAL PUBLISHED VERSION.
PRIOR HISTORY: APPEAL by the defendant Distribution
Systems of America, Inc., in an action, inter alia,
for injunctive relief, from an order and judgment
(one paper) of the Supreme Court (Sandra J.
Feuerstein, J.), entered April 19, 1995, in Nassau
County, which, inter alia, permanently enjoined it
from making deliveries of unsolicited newspapers
and/or advertisements upon the plaintiffs' property.
COUNSEL: Berg and Duffy, Mineola, N.Y. (James P.
Duffy III, Dennis C. Carletta, and Paul C. White of
counsel), for appellant.
Kenneth J. Glassman, New York, N.Y., for respondents.
Rogers & Wells, New York, N.Y. (David A. Schultz,
Jerome L. Wilson, and David E. McCraw of counsel),
for New York Newspaper Publishers Association, Inc.,
amicus curiae.
JUDGES: LAWRENCE J. BRACKEN, J.P., CORNELIUS J.
O'BRIEN, DAVID S. RITTER, JJ., DANIEL W. JOY
OPINION: OPINION & ORDER
BRACKEN, J.P. We hold that neither a publisher nor a
distributor has any constitutional right to continue
to throw a newspaper onto the property of an
unwilling recipient after having been notified not to
do so (see, City of Fredonia v [*2] Chanute
Tribune, 7 Kan App 2d 65, 638 P2d 347).
"Traditionally the American law punishes persons who
enter onto the property of another after having been
warned by the owner to keep off * * * [The State may
leave] the decision as to whether distributers (sic)
of literature may lawfully call at a home where it
belongs - with the homeowner himself. [The State] can
punish those who call at a home in defiance of the
previously expressed will of the occupant" (Martin v
City of Struthers, 319 U.S. 141, 147-148; see also,
City of Watseka v Illinois Public Action Council, 796
F2d 1547, affd 479 U.S. 1048; Citizens for a Better
Environment v City of Park Ridge, 567 F2d 689, 691;
Hall v Commonwealth, 188 Va 72, 49 SE2d 369;
Alternatives for California Women v County of Contra
Costa, 145 Cal App 3d 436, 449; City of Fredonia v
Chanute Tribune, 638 P2d 347, supra). "We perceive of
no reason crucial to defendant's First Amendment
rights that would require a householder to retrieve
an unwanted paper from his lawn" (City of Fredonia v
Chanute Tribune, supra, at 350).
The plaintiffs reside in Jericho, New York. The
defendant Distribution Systems of America, Inc.,
(hereinafter DSA) is a domestic [*3] corporation
which is in the business of distributing newspapers
and other publications. The defendant Newsday, Inc.,
(hereinafter Newsday) is a domestic corporation which
is the parent of DSA and which is itself a
wholly-owned subsidiary of the Times Mirror Company.
Newsday admittedly avails itself of DSA's services in
the making of deliveries. DSA is engaged in the
distribution, on a saturation basis, of a publication
known as "This Week".
According to the plaintiff Kenneth Tillman, the
unsolicited newspaper, together with pull-out
advertisements, were typically enclosed in a plastic
bag and placed on Mr. Tillman's driveway; on other
occasions, they were left on the front lawn or jammed
in between the storm door and the front door of the
house.
Beginning in 1990, Mr. and Mrs. Tillman made
repeated requests to DSA, seeking to have these
unwanted deliveries discontinued. According to Mr.
Tillman, agents of DSA repeatedly promised to stop
the deliveries. The Tillmans were eventually forced
to resort to a lawyer, and the lawyer's requests were
likewise met with assertions that the deliveries had
been or would be stopped. Notwithstanding these
assertions, it eventually became clear that [*4]
DSA was either unwilling, as a matter of principle,
or unable, as a matter of internal mismanagement, to
comply with the Tillmans' request.
The present action was commenced in the Supreme
Court, Nassau County on or about June 22, 1994. The
plaintiffs sought (1) an injunction restraining the
defendants from delivering any unsolicited free
newspapers or advertisements to their property, (2) a
money judgment in the sum of $ 250,000 representing
compensatory damages, (3) a money judgment in the sum
of $ 250,000 based on an alleged violation of Oyster
Bay Town Code @ 24-2, and (4) punitive damages. An
answer with several affirmative defenses was served
on or about July 15, 1994, including the assertion
that the defendants' conduct was "protected in whole
or in part" by the Federal and State Constitutions.
On December 7, 1994, the plaintiffs made a motion
for summary judgment. In support, Mr. Tillman
submitted an affidavit attesting to the circumstances
surrounding the delivery of the unwanted newspaper
and advertisements to his home. He stated his
grievance succinctly, asserting "there is no reason
that we have to clean up DSA's mess". He asserted
that "littering on a public street is [*5] unlawful
[and i]t should likewise be unlawful to litter on
[his] property". The plaintiffs' attorney echoed
these arguments, with some embellishment, asserting,
for example, that the United States Supreme Court
"has traditionally respected the right of a
householder to bar, by order or notice, solicitors,
hawkers, and peddlers from his property" (Rowan v
U.S. Post Off. Dept., 397 U.S. 728, 737). The
plaintiffs in effect requested summary judgment
pursuant to this principle.
The circulation director for DSA submitted an
affidavit in opposition. He asserted that DSA's
policy is to "strive to honor stop delivery requests"
and that it had been "trying to honor Mr. and Mrs.
Tillman's request". Unable to rebut the evidence
produced by Mr. Tillman in support of his allegation
that DSA's deliveries had continued despite repeated
promises to the contrary, DSA's circulation director
conceded that "to err is human" and chided Mr.
Tillman for being "less than divine" in his reaction
which, as DSA would have it, "seemed totally out of
proportion to the minor inconvenience that he and his
wife may have experienced as a result of [unwanted]
deliveries". He emphasized that, in relation to two
[*6] million total deliveries, a rate of error in
DSA's compliance with stop-delivery requests of only
1.5% would still mean "about 30,000 mistakes". This,
DSA argued, was as close to perfection as one can
likely get".
The defendants' attorney submitted an affidavit in
opposition referring to DSA's delivery of "First
Amendment protected material". He also claimed that
the plaintiffs had abandoned so much of their action
as requested a money judgment.
By decision and order dated March 30, 1995, the
Supreme Court granted the plaintiffs summary judgment
on their first cause of action for a permanent
injunction, and dismissed the second and third causes
of action. In the judgment entered thereon, the court
permanently enjoined DSA from making deliveries of
unsolicited newspapers and/or advertisements upon
plaintiffs' property located at 21 Clinton Lane,
Jericho, New York". This appeal followed.
The defendants argue on appeal that the material
delivered by DSA is "non-commercial speech" (citing,
e.g., Distribution Systems of America v Village of
Old Westbury, 862 F. Supp 950), and that the Supreme
Court's injunction prohibiting the delivery of this
material to the plaintiffs' home constitutes [*7]
"State action" which limits such speech (citing,
e.g., Shelley v Kraemer, 334 U.S. 1). Based on these
and related arguments, the defendants argue that the
granting of the plaintiffs' application for an
injunction infringed on their constitutional right of
free speech. We disagree. Assuming, without deciding,
that the issuance of an injunction prohibiting a
threatened trespass may be regarded as "State
action", we conclude that such state action in this
case did not infringe on the defendants'
constitutionally protected freedom of speech or on
the freedom of the press.
"The ancient concept that 'a man's home is his
castle' into which 'not even the king may enter' has
lost none of its vitality, and no recognized
exception includes any right to communicate
offensively with another" (Rowan v U.S. Post Off.
Dept., 397 U.S. 728, 737; see also, State by Humphrey
v Casino Mktg. Group, 491 NW2d 882 [Minn Sup Ct]; H &
L Messengers v City of Brentwood, 577 SW2d 444 [Tenn
Sup Ct]; Van Nuys Publ. Co. v City of Thousand Oaks,
5 Cal 3d 817, 97 Cal Rptr 777, 489 P2d 809). "An
individual's right to communicate must be balanced
against the recipient's right 'to be let alone' in
places in which [*8] the latter possesses a right
of privacy" (People v Shack, 86 NY2d 529, 536,
quoting Rowan v U.S. Post Off. Dept., supra, at 736).
In accordance with this general principle, it has
been held that a vendor has no right under the
Constitution or otherwise to send unwanted material
into the home of another, even if the flow of valid
ideas is impeded by such prohibition (Rowan v U.S.
Post Off. Dept., supra). In Rowan v U.S. Post Off.
Dept. (supra, at 736-737 [emphasis added]) the court
upheld a statute pursuant to which a person could
require the removal of his name from a mailing list
stating in relevant part:
"In today's complex society we are inescapably
captive audiences for many purposes, but a sufficient
measure of individual autonomy must survive to permit
every householder to exercise control over unwanted
mail. To make the householder the exclusive and final
judge of what will cross his threshold undoubtedly
has the effect of impeding the flow of ideas,
information, and arguments that, ideally, he should
receive and consider. Today's merchandising methods,
the plethora of mass mailings subsidized by low
postal rates, and the growth of the sale of large
mailing lists as [*9] an industry in itself have
changed the mailman from a carrier of primarily
private communications, as he was in a more leisurely
day, and have made him an adjunct of the mass mailer
who sends unsolicited and often unwanted mail into
every home. It places no strain on the doctrine of
judicial notice to observe that whether measured by
pieces or pounds, Everyman's mail today is made up
overwhelmingly of material he did not seek from
persons he does not know. And all too often it is
matter he finds offensive.
* * *
"The Court has traditionally respected the right of a
householder to bar, by order or notice, solicitors,
hawkers, and peddlers from his property. See Martin
v. Struthers, supra; cf. Hall v. Commonwealth, 188 Va
72, 49 S.E.2d 369, appeal dismissed, 335 U.S. 875
(1948). In this case the mailer's right to
communicate is circumscribed only by an affirmative
act of the addressee giving notice that he wishes no
further mailings from that mailer.
"To hold less would tend to license a form of
trespass and would make hardly more sense than to say
that a radio or television viewer may not twist the
dial to cut off an offensive or boring communication
and thus [*10] bar its entering his home. Nothing
in the Constitution compels us to listen to or view
any unwanted communication, whatever its merit; we
see no basis for according the printed word or
pictures a different or more preferred status because
they are sent by mail".
As noted in Rowan v U.S. Post Off. Dept. (397 U.S.
728, supra), the Supreme Court has "traditionally
respected the right of a householder to bar, by order
or notice, solicitors, hawkers, and peddlers from his
property" (Rowan v U.S. Post Off. Dept., supra, at
737, citing Martin v Struthers, 319 U.S. 141). Under
this more "traditional" approach, the court upheld an
ordinance forbidding the entry onto private property
by solicitors, hawkers, peddlers, itinerant merchants
and transient vendors, in the absence of a prior
invitation by the owners and occupiers (Breard v City
of Alexandria, 341 U.S. 622). The Breard court
stated, in part:
"The First and Fourteenth Amendments have never been
treated as absolutes. Freedom of speech or press does
not mean that one can talk or distribute where, when
and how one chooses. Rights other than those of the
advocates are involved. By adjustment of rights, we
can have both full [*11] liberty of expression and
an orderly life" (Breard v City of Alexandria, 341
U.S. 622, 642).
The Breard court went on to distinguish Martin v City
of Struthers (319 U.S. 141) as having been "narrowly
limited to the precise fact of the free distribution
of an invitation to religious services" (341 U.S.
622, 643). In Martin v City of Struthers (319 U.S.
141, supra), the court had invalidated a local law
which forbade the door-to-door distribution of
handbills, and which had been used against Jehovah's
Witnesses who had gone door to door with invitations
to a religious meeting. Justice Black, writing for
the court in Martin v City of Struthers (supra),
concluded that the local law infringed on the freedom
to distribute information, but also acknowledged the
propriety of leaving "with the homeowner himself" the
power to decide "whether distributors of literature
may lawfully call at a home" (Martin v City of
Struthers, supra, at 148).
The Breard court also distinguished Marsh v
Alabama (326 U.S. 501) and Tucker v Texas (326 U.S.
517), cases which involved limitations on
distributors of printed matter in "company and
government-owned towns" (Breard v City of Alexandria,
supra, [*12] at 643). The Breard court concluded
its analysis, upholding the ordinance, as follows:
"It would be, it seems to us, a misuse of the great
guarantees of free speech and free press to use those
guarantees to force a community to admit the
solicitors of publications to the home premises of
its residents. We see no abridgment of the principles
of the First Amendment in this ordinance" (Breard v
City of Alexandria, supra, at 645).
New York was one of the five States which, even
before the Breard decision, had upheld the validity
of this type of ordinance (see, People v Bohnke, 287
NY 154; Breard v City of Alexandria, 341 U.S. 622,
supra, fn 6, at 628; see also, McCormick v City of
Montrose, 105 Colo 493, 99 P2d 969; Watchtower Bible
& Tract Soc. Inc. v Metropolitan Life Ins. Co., 297
NY 339; City of Shreveport v Cunningham, 190 La 481,
182 So 649; City of Alexandria v Jones, 216 La 923,
45 So 2d 79; Green v Town of Gallop, 46 NM 71, 120
P2d 619). In People v Bohnke (287 NY 154, supra), the
court saw nothing wrong with an ordinance which left
to the discretion of the individual homeowner the
decision whether to allow the circulation of
pamphlets. The court stated, in part, [*13] the
following:
"We hold the ordinance valid. It does not prohibit
pamphleteering. It regulates pamphlet distribution in
private, not public, places, and gives no public
officer any power of censoring the pamphlets or
licensing, or refusing to license, their
distribution. (See Cox v. New Hampshire, 312 U.S.
569, 574; People v. Kuc, 272 N.Y. 72, 74; Town of
Green River v. Fuller Brush Co., 65 Fed. Rep. [2d]
112). It does not infringe any of appellants' rights
to the free exercise of their religion since it
merely regulates their entry onto private property
for the purpose of promoting their religious beliefs.
It does leave to the pleasure of the individual
householder the determination of whether or not
pamphlets may be circulated on that householder's
premises, but this infringes no right of appellants,
since the Constitution does not guarantee them any
right to go freely onto private property for such
purposes" (People v Bohnke, supra, at 158-159).
As illustrated by the fact patterns presented in
Breard v City of Alexandria (supra), and People v
Bohnke (supra), local governments have, on several
occasions, attempted to come to the aid of those
homeowners who find it [*14] increasingly difficult
to hold out, as their "castles" are besieged by mail,
by phone, or, as in this case, by paper bombardment.
Several ordinances, which to some extent regulate
unsolicited distribution of written material,
unsolicited mailings, unsolicited phone calls, or
unsolicited commercial visits, have been challenged
in the courts on First Amendment grounds (see, e.g.,
Szefczek v Hillsborough Beacon, 286 NJ Super 247, 668
A2d 1099 [prohibition of residential phone
solicitation during certain hours without adequate
do-not-call procedures]; City of Fresno v Press
Communications, 31 Cal App 4th 32 [ordinance barring
newspaper distribution when owner/occupant has left
sign refusing delivery, or where previous
distribution not collected]; Chicago Tribune Co. v
Village of Downers Grove, 125 Ill 2d 468, 532 NE2d
821 [ordinance requiring solicitors to honor
householder's 'no solicitation' notice]; Tipco Corp.
v City of Billings, 197 Mont 339, 642 P2d 1074
[ordinance barring door-to-door solicitations];
Satinoff v Commonwealth, 128 Pa Commw 93, 562 A2d 996
[conviction for violating anti-peddling ordinance];
City of Hillsboro v Purcell, 306 Or 547, 761 P2d 510
[anti-solicitation [*15] ordinance]; National
Delivery Systems v City of Inglewood, 43 Cal App 3d
573 [ordinance governing distribution of commercial
literature]; Toms River Publ. Co. v Borough of
Manasquan, Monmouth County, 127 NJ Super 176, 316 A2d
719 [action by newspaper publisher to enjoin
anti-litter ordinance]; Van Nuys Publishing Co. v
City of Thousand Oaks, 5 Cal 3d 817, supra [action by
publisher to enjoin enforcement of anti-litter
ordinance]). In general, the ordinances challenged
have proved susceptible to constitutional attack,
often because of the overbreadth of the particular
ordinance's reach, or because a classification
contained in the ordinance violates the equal
protection clause. Typical of these cases is
Distribution Systems of America, Inc. v Village of
Old Westbury (862 F Supp 950), the case most heavily
relied upon by the defendants herein.
Many of these cases may seem to be at odds with
Breard v City of Alexandria (341 U.S. 622, supra). It
may be that the validity of the holding in Breard
(supra) must be reevaluated to the extent that this
case may be said to rest upon the view that
"commercial" speech is not entitled to protection.
More recent case law has established that [*16]
commercial speech is in fact protected, to some
extent, by the Constitution (see, Virginia State Bd.
of Pharmacy v Virginia Citizens Consumer Council, 425
U.S. 748; Central Hudson Gas & Elec. Corp. v Public
Serv. Commn. of N.Y., 447 U.S. 557). However, we do
not believe that, in extending constitutional
protection to commercial speech, in general, the
Supreme Court necessarily eroded the privacy
protection afforded to a landowner who, as an
individual, has knowingly decided to bar a certain
type of speech, commercial or otherwise, from his or
her property (see, e.g., Rowan v U.S. Post Off.
Dept., 397 U.S. 728, supra).
The most critical and fundamental distinction
between the cases cited above, on the one hand, and
the present case, on the other, is based on the fact
that here we are not dealing with a government agency
which seeks to preempt in some way the ability of a
publisher to contact a potential reader; rather, we
are dealing with a reader who is familiar with a
publisher's product, and who is attempting to prevent
the unwanted dumping of this product on his property.
None of the cases cited by the defendants stands for
the proposition that the Free Speech Clause prohibits
[*17] such a landowner from resorting to his
common-law remedies in order to prevent such unwanted
dumping. There is, in our view, nothing in either the
Federal or State Constitutions which requires a
landowner to tolerate a trespass whenever the
trespasser is a speaker, or the distributor of
written speech, who is unsatisfied with the fora
which may be available on public property, and who
thus attempts to carry his message to private
property against the will of the owner (see, Lloyd
Corp. v Tanner, 407 U.S. 551).
In Lloyd Corp. v Tanner (supra, at 567-568
[emphasis added]), the court held that the owner of a
shopping center who consented to public access to his
property for the purposes of shopping had no
obligation to permit the distribution of handbills
unrelated to the shopping center's function, stating:
"The basic issue in this case is whether
respondents, in the exercise of asserted First
Amendment rights, may distribute handbills on Lloyd's
private property contrary to its wishes and contrary
to a policy enforced against all handbilling. In
addressing this issue, it must be remembered that the
First and Fourteenth Amendments safeguard the rights
of free speech and assembly [*18] by limitations on
state action, not on action by the owner of private
property used nondiscriminatorily for private
purposes only. The Due Process Clauses of the Fifth
and Fourteenth Amendments are also relevant to this
case. They provide that 'no person shall * * * be
deprived of life, liberty, or property, without due
process of law. "There is the further proscription in
the Fifth Amendment against the taking of" private
property * * * for public use, without just
compensation'.
"Although accommodations between the values
protected by these three Amendments are sometimes
necessary, and the courts properly have shown a
special solicitude for the guarantees of the First
Amendment, this Court has never held that a
trespasser or an uninvited guest may exercise general
rights of free speech on property privately owned and
used nondiscriminatorily for private purposes only.
Even where public property is involved, the Court has
recognized that it is not necessarily available for
speaking, picketing, or other communicative
activities" (see also, SHAD Alliance v Smith Haven
Mall, 66 NY2d 496; Bank of Stockton v Church of
Soldiers of Cross of Christ, 44 Cal App 4th 1623;
Judlo, Inc. [*19] v Vons Companies, 211 Cal App
3d 1020; cf. New Jersey Coalition Against War in
Middle East v J.M.B. Realty, 138 NJ 326, 650 A2d 757).
The defendants' essential argument is that there
is nothing a homeowner can do to stop the dumping on
his or her property of pamphlets or newspapers, no
matter how offensive they might be. The confines of
the defendants' argument are not entirely clear;
however, it is fair to say that there is no obvious
limitation on the scope of their argument, with
respect to either the quality or the quantity of the
"protected material", so that, in theory, homeowners
would have no recourse in the event they were
subjected to the mass dumping of anything, including
racist or anti-Semitic rantings, which could claim
First Amendment protection. Such landowners would
either have to allow such unwanted newspapers to
accumulate, or to expend the time and energy
necessary to gather and to dispose of them. In our
view, the defendants' freedom of speech can be fully
protected without subjecting innocent homeowners to
the potential for this kind of abuse.
The constitutional right of free speech does not
correspond to the "right" to force others to listen
to whatever one [*20] has to say. By the same
token, the right to publish, distribute, and sell a
newspaper does not correspond to the "right" to force
others to buy or to read whatever one has written, or
to spend their own time or money unwillingly
participating in the distribution process by which a
newspaper travels from the printing press to its
ultimate destination, i.e., disposal. The state does
all that it needs to do in order to protect the
constitutional rights of a newspaper publisher when
it refrains from censorship, and when it allows the
distribution of the newspaper into the hands of the
ultimate reader to proceed in accordance with the
natural economic laws of a free market. The state
need not, and in our opinion, should not, compel
anyone to read, to buy, or even to touch, pick up, or
handle a newspaper of which the individual in
question wants to have no part. For these essential
reasons, we affirm the order and judgment appealed
from, which enjoined the defendants from continuing
to deposit their newspaper on the plaintiffs'
property.
O'BRIEN, RITTER and JOY, JJ., concur.
ORDERED that the order and judgment is affirmed,
with costs. -
MadApostate
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MadApostate
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