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Do-not-call list hung up again

Shortly after Congress passes a law blocking unwanted calls by telemarketers, a federal judge rules it is unconstitutional.

By Associated Press
Published September 26, 2003

WASHINGTON - With remarkable speed and near unanimity, Congress passed legislation Thursday intended to ensure consumers can block many unwanted telemarketing calls.

But whether the service millions of Americans signed up for takes effect next week was thrown into doubt when a second federal judge ruled the list violates free speech protections.

U.S. District Judge Edward Nottingham in Denver blocked the list late Thursday, handing another victory to telemarketers who argued the national registry is unconstitutional and will devastate their industry.

His decision came shortly after the House and Senate voted overwhelmingly for a bill making clear that the Federal Trade Commission has the power to enforce the do-not-call list. The legislation was prompted by a ruling by U.S. District Court Judge Lee West in Oklahoma City who said the FTC lacked the power to create and operate the registry.

The House voted 412-8 and the Senate 95-0 for the bill. President Bush said he looked forward to signing it. "Unwanted telemarketing calls are intrusive, annoying and all too common," he said.

The list that would block an estimated 80 percent of telemarketing calls is supposed to be effective Wednesday, but it's unclear whether legal issues will be settled by then. Even after Bush signs the legislation, the FTC must win in court for the list to move forward.

Despite the uncertainty, the FTC is encouraging people to continue signing up for the list at the Web site or by calling 1-888-382-1222.

The FTC asked West to block the order he issued Tuesday declaring the agency lacked proper authority to oversee the list. He declined Thursday and the FTC appealed to the 10th U.S. Circuit Court of Appeals in Denver.

The FTC had no immediate comment on Nottingham's ruling, but it also probably will end up with the 10th Circuit.

The suit in Nottingham's court was filed in January by two telemarketing companies and the American Teleservices Association, which represents call centers.

Nottingham said the do-not-call list was unconstitutional under the First Amendment because it does not apply equally to all kinds of speech, blocking commercial telemarketing calls but not calls from charities.

"The FTC has chosen to entangle itself too much in the consumer's decision by manipulating consumer choice," Nottingham wrote.

Ken Johnson, spokesman for Rep. Billy Tauzin, R-La., chairman of the House Energy and Commerce Committee, said the ruling "puts a little damper on the party, but we're still confident of prevailing in the end." He said Tauzin's staff was reviewing the Denver decision.

During brief debates, House and Senate members made it clear they want the list.

"Clearly the court's decision was misguided," said Sen. John McCain, R-Ariz., referring to West. "The measure before us makes crystal clear the commission can and should proceed with the do-not-call list."

He said the Oklahoma City ruling has "served as a rallying cry for the tens of millions of American households who signed up for the registry."

Sen. Charles Schumer, D-N.Y., said no one likes "hopping up and down like jackrabbits to answer the phone and then hear somebody on the phone try to sell you something. It drives you crazy."

The ruling caught lawmakers off guard but they responded with remarkable speed. Bills can take months or even years to pass, but the do-not-call legislation was drafted and approved in both chambers in little more than 24 hours.

The rapid response underscored the popularity of the list, which after fewer than four months has nearly 51-million numbers.

"This legislation got to the House floor faster than a consumer can hang up on a telemarketer at dinnertime," said Rep. Edward Markey, D-Mass.

The FTC expects the list to block four of every five telemarketing calls. Exemptions include calls from charities, pollsters and on behalf of politicians.

The FTC's rules require telemarketers to check the list every three months to see who does not want to be called. Those who call listed people could be fined up to $11,000 for each violation. Consumers would file complaints to an automated phone or online system.

Telemarketers say the list would severely harm their industry and lead to the loss of thousands of jobs.

That argument rang true for at least some of the eight House members who voted against the bill.

Rep. Ted Strickland, D-Ohio, said he wanted to protect around 1,000 jobs at three telemarketing call centers in his mostly rural district.

"Inconvenience is tolerable, but job loss in my district is devastating," he said.

Rep. Lee Terry, R-Neb., said he was looking out for 39,000 people employed by almost 40 telemarketing businesses in Omaha, Neb.

Florida Democrat Kendrick Meek said he thought it hypocritical to selectively exclude unwanted calls from business but not politicians.

"That's like saying we're going to ban junk mail, but only "bad' junk mail," he said.

Despite the legal wrangling, the Direct Marketing Association, one of the groups that challenged the registry, said it has asked its members to obey the wishes of those who enrolled in the registry.

"It is appropriate for marketers to respect the wishes of consumers," said H. Robert Wientzen, the association's president.

Calling out the judge

No sooner had U.S. District Judge Lee West cast doubt on the national do-not-call list than he was in need of one himself.

Egged on by angry Web sites and talk show hosts, callers constantly dialed West's office and home phone lines, which had been posted on the Internet. The Associated Press, trying to reach West for comment, only got busy signals.

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