Do Not Call List BLOCKED by TWO Federal Courts - Mary Beth Guard

Do Not Call List Legal Saga
by Mary Beth Guard

UPDATE 10/7/03: On October 7, 2003, the 10th Circuit Court of Appeals stayed the order of the Denver federal district court which had held that the Do Not Call list violated free speech rights. The FTC is now free to enforce to the Do Not Call law pending further appeals.

Previously
On September 24, 2003, U.S. District Court Judge Lee West from the Western District of Oklahoma handed down a decision that represents a stunning victory for telemarketers days before the national Do Not Call list requirements take effect. Judge West has ruled that the Federal Trade Commission exceeded its authority in creating a national do-not-call list.

The ruling came in the context of a lawsuit filed by the Direct Marketing Association, U.S. Security, Chartered Benefit Services, Inc., Global Contact Services, Inc., and InfoCision Management Corp. which sought to block enforcement of the list. The plaintiffs contended that the list violated the first amendment right to free speech and unlawfully discriminates against the telemarketing industry.

50 million individuals have already registered for the list and were looking forward to enjoying quiet dinner hours. Indeed, by late afternoon on the day of the ruling, the FTC had already filed a motion to stay enforcement of the judge's ruling pending appeal. The FTC also filed its notice of appeal.

On September 25, a second federal court ruled on the issue. This time, the court's ruling was based upon first amendment grounds. This could significantly complicate, or even decimate, the ongoing Congressional efforts to remedy the problem. On September 25, both the House and Senate passed legislation to grant FTC the authority to promulgate the list (which was what the first court said FTC didn't have). On September 29, President Bush signed new legislation into law that affirms the FTC's authority to create the Do Not Call list. The alleged constitutional defects can't be remedied by legislation, however.

The second court decision, from the federal district court in Colorado, runs 34 pages and helps make clear the interplay between the FCC and the FTC on this issue.

The FCC takes the position that these decisions do NOT impact the FCC DNC Rules. The FCC Chairman issued the following statement:

?The FCC will enforce its Do-not-call rules against telemarketers that have obtained the Do-Not-Call list from the FTC, beginning Wednesday. The FCC rules complement and expand on those of the FTC. FCC rules have not been disturbed by recent court cases. Last week, the 10 th Circuit Court of Appeals refused to block the rules pending review?as the telemarketing industry had urged?citing the strong public interest of leaving the rules in place. The Commission intends to continue to administer and enforce its rules to the fullest extent possible as the litigation proceeds. ?The Commission remains committed and determined to defend the choices of the American people.?

On its Web site, the FTC states:

The FTC is appealing the decision of the federal court in Denver and expects ultimately to implement the National Do Not Call Registry. The FTC also has asked the U.S. Court of Appeals in Denver for an emergency stay of the order prohibiting the FTC from implementing the National Do Not Call Registry. Pending court action, the FTC cannot implement the National Do Not Call Registry. Most telemarketers, however, also are subject to the Federal Communication Commission?s (FCC) do not call rule, which takes effect October 1, 2003. The FCC has announced that it will enforce its rule (See http://hraunfoss.fcc.gov/edocs_public/attachmatch/DOC-239219A1.pdf.) For information on filing a do not call complaint with the FCC, visit http://www.fcc.gov/cgb/donotcall/ (see ?How to Complain?).

Related links:
10th Circuit Decision
Colorado Court Decision
FCC Statements
Oklahoma Court's Order
FTC Chairman'sreaction.
FCC's Do Not Call Registry Information
FTC Moves to Stay Ruling
First published on BankersOnline.com 09/24/03. Updated 10/1/03 and 10/7/03.