[ql06] PUBLIC: US "Do-Not Call" list -- Part II
- From: "Ken Campbell -- LAW'06" <2kc16@xxxxxxxxxxxxxxxx>
- To: <ql06@xxxxxxxxxxxxx>
- Date: Fri, 26 Sep 2003 04:58:04 -0400
Okay... this is getting interesting, from this morn's edition!
1. First, Okie judge says FTC doesn't have
statutory authority to make list
2. Legislature says, OK. Does quickie bill
giving FTC the power.
3. Rather substantial vote: 95-0 Senate, 412-8
House (the 8 from call centre states?)
Now it seems the direct phone marketing creatures have switched
tactics -- running through that list of arguments approach that Stan
(public prof) was talking about yesterday, I suppose.
The story is no longer about rule of law and statutory assignment of
power... Now it's about "free speech" and discrimination. Judge
Nottingham's ruling, below: "Do-not-call registry discriminates against
for-profit businesses."
So, for now, these people still have the right to disturb Yanquis during
dinner and ask about their favorite fabric softeners.
But the legislature and executive are united to do something about it...
Wonder what the next move will be?
Ken.
--
Chess is as elaborate a waste of human intelligence as
you can find outside an advertising agency.
-- Raymond Chandler
--- cut here ---
Do-Not-Call Listing Remains Up in Air After Day of Twists
By SHERYL GAY STOLBERG with MATT RICHTEL
New York Times
September 26, 2003
WASHINGTON, Sept. 25 — In a swift display of bipartisan unity, Congress
overwhelmingly passed legislation today aimed at allowing a national
do-not-call registry against unwanted telemarketing to take effect next
week as planned. But hours after the vote, which effectively rendered
moot a federal judge's injunction against the registry, a second judge
declared the program a violation of free speech.
The new ruling was the latest twist in a confusing off-again-on-again
drama involving the federal effort to prevent unwanted telephone
solicitation. Unless it is overturned by a higher court, the latest
judicial decision would block the government from going ahead on
schedule with the hugely popular federal program; almost 50 million
American households have signed up for the list.
Today's Congressional measure was drafted in haste on Wednesday after
lawmakers learned of the first decision, issued by a federal judge in
Oklahoma who ruled on the fairly narrow grounds that the registry could
not go forward because Congress had not specifically authorized the
right agency to run it.
The bill passed 95 to 0 in the Senate and 412 to 8 in the House.
"Perhaps we should call this bill the `This Time We Really Mean It
Act,'" declared Representative Billy Tauzin, the Louisiana Republican
and chief House sponsor of the bill, "to cure any misunderstanding in
the judicial branch."
President Bush said he would sign the measure. It gives the Federal
Trade Commission the power to create and enforce the do-not-call list,
something that lawmakers thought they had already done but that the
judge, Lee R. West, said they had not.
The second ruling, issued today by Judge Edward W. Nottingham of Federal
District Court in Denver, threw a more effective obstacle in the way of
the list on the ground that it discriminates against for-profit
businesses; the registry program still allows political and charitable
solicitation calls to be made. Judge Nottingham ruled that by exempting
the nonprofit solicitors from the registry, the F.T.C. "has imposed a
content-based limitation on what the consumer may ban from his home."
He added that "the mechanism purportedly created by the F.T.C. to
effectuate consumer choice instead influences consumer choice, thereby
entangling the government in deciding what speech consumers may hear."
The burden on commercial speech was significant enough, the judge ruled,
"to amount to a government restriction implicating the First Amendment."
Because the ruling came on broad constitutional grounds the program's
future will probably not be settled in Congress, but in the courts.
"Congress can't trump the Constitution," said Robert Corn-Revere, a
lawyer for the American Teleservices Association, a trade group that
brought the lawsuit in Denver. "If rules and laws are unconstitutional,
they cannot be enforced."
Representative Ed Markey, Democrat of Massachusetts and a longtime
advocate of the do-not-call list, said he was confident the second
ruling would be overturned by a higher court.
"The Supreme Court has historically given much greater protection to
political speech than to commercial speech," Mr. Markey said in a
telephone interview tonight, after he and most other lawmakers had left
the Capitol for the day believing the issue was settled. "The
legislation was drafted to reflect that historical constitutional
distinction. I believe this decision will be overruled on appeal as a
misinterpretation of constitutional law."
Cathy MacFarlane, a spokeswoman for the F.T.C., said she had heard about
the ruling but had not seen it yet. "Our lawyers are going to review it
carefully and determine what the next steps will be," she said.
The second ruling came after most lawmakers had gone home for the day.
But Congressional aides vowed to keep fighting, even as they
acknowledged that they now had a bigger obstacle to overcome.
"They can keep going to court and we're going to keep trying to get this
registry up and running," said Ken Johnson, a spokesman for Mr. Tauzin.
A spokesman for Senator Dianne Feinstein, a California Democrat who was
a leading sponsor of the bill in the Senate, said she wanted to consult
with lawyers at the Federal Trade Commission to determine if there is
anything Congress can do to overcome the ruling.
"It shows overwhelming support by the American people," said the
spokesman, Howard Gantman. "It's a shame that it's being held up again."
Trade commission officials say more than 50 million phone numbers have
been listed since registration began on June 26. A former F.T.C. lawyer
called the registry the "most populist effort in the history of the
agency."
So when the list appeared threatened, lawmakers of both parties rushed
to defend it.
"This legislation got to the floor faster than a consumer can hang up on
a telemarketer at dinner time," Mr. Markey said.
Telemarketing industry officials marveled at the swiftness of
Congressional action. The also said that the lawmakers' rapid response
demonstrated how easy a political target telephone solicitors had
become. Under the regulations, telemarketers who call numbers on the
list risk fines of up to $11,000 a violation.
During Congressional debate today, it became clear that ordinary
consumers were not the only ones irked by telemarketers. In speech after
speech, lawmakers described their own personal strategies for dealing
with telemarketing calls.
"My wife has got it all figured out," said Senator Conrad Burns,
Republican of Montana, saying that she informs telemarketers that she
will look for her husband. "Whether I'm there or not, she lays the phone
down and goes off and leaves it, until we hear the little disconnect:
`If you're trying to place a call, please hang up and dial again.' "
But one lawmaker's irritation is another one's jobs program, as
Representative Lee Terry, Republican of Nebraska, can attest. Mr. Terry
was one of the eight House members who voted against the measure. He
said telemarketing provides jobs, both directly and indirectly, to
39,000 of his constituents; of these, 12,000 work on the phones.
"I understand it's annoying," Mr. Terry said. "But I come from a
district where that annoyance is putting bread on somebody's table."
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