Blocked do-not-call list means telemarketers can keep calling

Saturday, September 27, 2003

WASHINGTON -- Telemarketers will be free to make sales pitches next week to people who registered for the national do-not-call list, the government said Friday.

At the same time, the industry's largest association was urging its members to respect the wishes of the millions who say they don't want to be bothered.

The Federal Trade Commission acknowledged that a federal judge's ruling in Denver that the registry infringes on telemarketers' free speech rights left the agency with no authority to enforce the list, which was scheduled to take effect next Wednesday.

"You can still put your number on the national registry," the FTC said in a statement posted on its Web site, "but for now, telemarketers are not required to comply with it."

The FTC asked the judge to temporarily suspend his ruling while an appeal that the agency filed with the 10th U.S. Circuit Court of Appeals in Denver proceeds.

Urged to respect list

Meantime, the Direct Marketing Association said its members should not call the nearly 51 million numbers on the list.

"We are telling our members, yes indeed, we don't want you calling people who have told anyone they don't want any calls," president H. Robert Wientzen said. He said he hadn't had time to arrange agreements making that request binding, but "up to the moment I have had nobody disagree."

Some telemarketers said they wondered if they could comply with the list even if they wanted to.

"The judge said it was illegal to create the list. By implication, it's possible it's illegal to use the list," said Tim Searcy, executive director of the American Teleservices Association, one of the groups that brought the Denver lawsuit.

At any rate, the result will be mixed for consumers, said Walter Janowski, a director with the research firm Gartner Inc.

The confusion capped a tumultuous week for the list, which is intended to block about 80 percent of telemarketing calls.

U.S. District Court Judge Lee R. West in Oklahoma City ruled Tuesday that the FTC lacks the authority to operate the registry. That prompted Congress to move with near record speed and in one day pass a bill making it clear the agency may oversee the list. President Bush plans to sign the bill Monday.

While Congress was doing its work Thursday, U.S. District Judge Edward W. Nottingham in Denver issued a ruling saying the list is unconstitutional. Nottingham found speech is treated unequally because the list applies to calls from businesses but not charities.

"I do not believe that our Constitution dictates such an illogical result," FTC Chairman Timothy Muris said. "To the contrary, our Constitution allows consumers to choose not to receive commercial telemarketing calls."

Muris said that if Nottingham's reasoning was applied elsewhere, it would cripple more than two dozen other state do-not-call lists.

In yet another court ruling related to the list, a three-judge panel of the Denver appeals court on Friday denied a request from telemarketers challenging the Federal Communications Commission's role in the registry.

The FCC added its authority to the list to stop calls from certain industries it regulates, including airlines, banks and telephone companies. The telemarketers requested that the judges temporarily block that agency's rules involving the registry. Though that was denied, the case continues.

People may sign up for the list at or by calling 1-888-382-1222. Telemarketers are supposed to check every three months to see who does not want to be called. If the list is implemented, telemarketers could be fined up to $11,000 each time they call a number on the list. Consumers would file complaints to an automated phone or online system.

Exemptions to the list include calls from charities, pollsters and on behalf of politicians.

Wientzen said that despite telling members to obey the wishes of people who don't want to be called, the telemarketing industry still opposes the list. The Direct Marketing Association was one of the groups that brought the case decided by West.

"We don't think this is an appropriate role for government," Wientzen said.


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