- The Washington Times - Tuesday, October 7, 2003

DENVER (AP) — A federal appeals court yesterday cleared the way for the Federal Trade Commission to operate the national do-not-call list, pending a court decision over whether the registry violates the telemarketing industry’s free-speech rights.

The registry started last week, but its operation had been turned over from the FTC to the Federal Communications Commission because of concerns that the FTC had overstepped its legal authority.

The 10th U.S. Circuit Court of Appeals said the FTC could run the registry while a challenge from telemarketers winds its way through the courts. Oral arguments were scheduled in Tulsa, Okla., on Nov. 10.

More than 50 million people have signed up for the free registry.

Late last month, U.S. District Judge Edward Nottingham of Denver had barred the FTC from putting the registry into effect because the list unfairly blocks calls from businesses but not charities.

In staying his ruling, the appeals court suggested that conclusion was too broad.

“The Supreme Court has held that there is undoubtedly a substantial governmental interest in the prevention of abusive and coercive sales practices,” the court said. “The prevention of intrusion upon privacy in the home is another paradigmatic substantial governmental interest.”

The court also noted that Congress had found some telemarketing calls “have subjected consumers to substantial fraud, deception and abuse.”

“Today’s decision … is a victory for Americans who want to reduce the nuisance of unwanted telephone solicitations,” President Bush said in a statement last night.

Officials with the American Teleservices Association in Indianapolis declined immediate comment.

The FTC issued rules in December creating the national do-not-call list.

The free registry went into effect last week after the government scrambled to overhaul the system following the court challenges. The FTC gave up most control of the list to the FCC.

Congress then passed the Do-Not-Call Implementation Act giving the agency authority to collect fees from telemarketers to establish and enforce the list. Mr. Bush signed that bill. He also signed the Omnibus Appropriations Act in February authorizing the FTC to enforce the do-not-call provisions.

It was Judge Nottingham’s ruling that had been closely watched because of the constitutional issues.

Attorneys for telemarketers argued the FTC has not shown charitable calls are less annoying than commercial calls. They also said the First Amendment rights of telemarketers need to be protected.

Regulators say the list will stop up to 80 percent of the 104 million calls that telemarketers attempt daily.

The list is widely popular. In the first 14 hours that consumers could sign up to block telemarketing calls, nearly 650,000 people added numbers to the list. By September, nearly 134,000 D.C. residents, 1.1 million Maryland residents and 1.5 million Virginia residents put their numbers on the registry.

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