FTC to appeal do-not-call decision
Second judge blocks list, citing free speech concerns
Friday, September 26, 2003 Posted: 6:08 PM EDT (2208 GMT)
WASHINGTON (CNN) -- The Federal Trade Commission will appeal a federal judge's ruling that blocks the national do-not-call registry from starting next week as scheduled, the commission's chairman announced Friday.
Unless federal officials can convince the courts that the list does not violate free speech rights guaranteed by the First Amendment, the list will not be implemented as scheduled.
FTC Chairman Timothy J. Muris said he doesn't agree with the ruling and his agency "will seek every recourse to give American consumers a choice to stop unwanted telemarketing calls."
"I do not believe that our Constitution dictates such an illogical result," he said in a statement on the FTC Web site. "To the contrary, our Constitution allows consumers to choose not to receive commercial telemarketing calls."
The House of Representatives and Senate voted Thursday to give the Federal Trade Commission explicit authority to create the registry. Congress reacted swiftly to a separate federal court order Tuesday that the FTC needed a legislative mandate to create the wildly popular list.
But then later Thursday a second federal judge ruled that the do-not-call list was a violation of free speech.
The White House has said President Bush will sign the new legislation into law, but the list will not go into effect Wednesday, October 1, as planned unless a higher court reverses the second ruling.
The telemarketing industry's largest trade group said it will ask members to abide by the list even though it's not legally binding, a spokesman for the Direct Marketing Association told CNN.
In Thursday's decision, U.S. District Judge Edward Nottingham blocked the list based on telemarketers' free speech rights.
The do-not-call list applies to telemarketers but not to nonprofit organizations, politicians and pollsters.
Nottingham found that the registry "does not materially advance its interest in protecting privacy or curbing abusive telemarketing practices."
"The registry creates a burden on one type of speech based solely on its content, without a logical, coherent privacy-based or prevention-of-abuse-based reason supporting the disparate treatment of different categories of speech," Nottingham ruled.
The issue of free speech rights cannot be addressed with congressional action and must be resolved by the courts.
Nottingham's order resulted from a suit filed in Colorado by telemarketing businesses in that state. It was unrelated to the claim and order issued Tuesday in Oklahoma by Judge Lee R. West, which prompted this week's congressional action.
West determined that the FTC had overstepped its bounds in creating such a registry. In response, the House on Thursday voted 412-8 for such a mandate, and the Senate passed it 95-0.
"Fifty million Americans can't be wrong," U.S. Rep. Billy Tauzin, R-Louisiana, said Wednesday, referring to the number of phone numbers that people have signed up to block the unwanted solicitations.
Muris vowed to continue the fight for the registry.
"This court's reasoning [in Colorado], if adopted elsewhere, would effectively cripple virtually every do-not-call registry in the United States, whether state or federal. I do not believe that our Constitution dictates such an illogical result," a statement from Muris read. "We will seek every recourse to give American consumers a choice to stop unwanted telemarketing calls."
Currently 27 states have do-not-call registries, with more to follow.
The Federal Communications Commission also said Friday it would support the FTC.
"The will of the people, the will of the Congress and of the administration could not be more clear. Fifty million Americans have, thus far, asked not to be bothered by unwanted calls," FCC Chairman Michael K. Powell said in a statement.
"We strongly believe the do-not-call list withstands constitutional scrutiny. The FCC will join the FTC in taking every appropriate legal measure to ensure the will of the people is vindicated."
In June, the federal government launched the national do-not-call registry aimed at stopping most telemarketing phone calls to people who regard the sales pitches as invasive and want them blocked. More than 730,000 people registered the first day.
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