No-call list blocked by second judge

Friday, September 26, 2003

With remarkable speed and near unanimity, Congress on Thursday passed legislation 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 W. 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 an earlier ruling by a federal judge 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 in a statement.

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 (888) 382-1222.

Sen. Jim Talent, R-Mo., was an original co-sponsor of the bill that the Senate passed today.

"This is a good, voluntary program that will protect Missouri consumers from telemarketers, especially the ones who like to call late at night and during dinner," he said in an e-mailed statement.

Rep. Jo Ann Emerson, R-Mo., cast her vote in favor of the House bill.

"Americans deserve the right to limit the solicitations that come into their home if they choose," she said.

Their views garnered resounding support from constituents, who overwhelmingly support the list. For some, the mention of telemarketers evokes strong emotion.

"I get fed up with them damn people calling all the time," said Howard Thomas, 83, of Cape Girardeau. "They should be arrested for harassment."

Brent Armour, 27, also of Cape Girardeau, took issue with West's ruling and the impetus for the lawsuit brought by telemarketing companies. The companies contend that a do-not-call list will put them out of business and cost the nation thousands of jobs.

"I think it's bull what that judge says," Armour said. "They say we need it to stimulate the economy, but that's just another way to get in and sell products that we don't need."

There are no figures available at the Missouri Department of Economic Development on the number of telemarketers who work in Missouri who may lose their jobs after the implementation of this list.

Talent said that Missouri has registered over 658,000 people who do not want to be called.

Second judge rules

The FTC asked U.S. District Court Judge Lee R. West to block the order he issued Tuesday declaring the agency lacked proper authority to oversee the list. He declined Thursday and the FTC immediately 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 already 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.

Since issuing the ruling, West's home and office have been bombarded with calls from angry consumers. His numbers were posted on the Internet and people were encouraged to call.

"They just keep calling to harass us, like the telemarketers harass them, I guess," said Rick Wade, operations manager at the district clerk's office.

Despite the torrent of angry calls Thursday, West rejected the FTC's request to block his order, saying the agency offered no additional evidence that would make him change his mind.

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. Still, 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 are enrolled in the registry.

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

Staff writer Rob Goodier contributed to this report.

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