- The Washington Times - Wednesday, September 24, 2003

A federal judge said yesterday that the Federal Trade Commission doesn’t have authority to establish a “do-not-call” list that would have blocked telemarketing calls.

U.S. District Judge Lee R. West of the Western District of Oklahoma said in a 19-page judgment that the FTC has authority to enforce the do-not-call list, but that Congress had not empowered the regulatory agency to establish the list.

“The basic issue … is whether the FTC had the authority to promulgate a national do-not-call registry. The court finds it did not,” wrote the judge, a Democrat appointed by President Carter in 1979.

The decision came a week before telemarketers would have been prohibited from calling the 50.6 million consumers who have placed their phone numbers on the do-not-call list that regulators introduced in June.

“The decision is clearly incorrect,” Federal Trade Commission Chairman Timothy J. Muris said.

It is not clear how the ruling affects the trade commission’s plans, but opponents of the decision are lining up to preserve the new telemarketing rules. Late yesterday, the FTC filed a motion asking the court to keep the do-not-call list while the agency appeals the ruling.

In addition, legislators said Congress could take measures as soon as today to ensure that the do-not-call list takes effect Oct. 1 as planned.

The head of the Direct Marketing Association, which challenged the new rules and sued the FTC in January, said he hopes to find a way to prevent telemarketers from calling consumers who don’t want to be called.

“We believe the people who say they don’t want to be called should not be called. We have to figure out a way to make that happen,” DMA President and Chief Executive Officer Robert Weintzen said.

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

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

In his decision, Judge West said the Federal Communications Commission — not the FTC — has authority to establish a do-not-call list.

The judge said telemarketing fraud and abusive telemarketing practices are significant public concerns, but an “agency’s power to regulate in the public interest must always be grounded in a valid grant of authority from Congress.”

Several congressmen criticized the judge’s decision and promised to intervene immediately.

“Contrary to the court’s decision, we firmly believe Congress gave the FTC authority to implement the national do-not-call list, and we will continue to monitor the situation and will take whatever legislative action is necessary to ensure consumers can stop intrusive calls from unwanted telemarketers,” Rep. Billy Tauzin, Louisiana Republican and chairman of the House Energy and Commerce Committee, and Rep. John D. Dingell, Michigan Democrat, said in a prepared statement.

Telemarketers, who say the do-not-call list will deprive them of $50 billion annually, praised the decision. The FTC “stepped out of their bounds,” said Tim Searcy, executive director of the American Teleservices Association, which represents telemarketers.

Regulators say the list will stop up to 80 percent of the 104 million calls that telemarketers attempt daily. Adam Goldberg, a policy analyst with the Consumers Union, said the decision may leave consumers in limbo, but predicted that Congress likely will intervene.

“Whatever happens with the court decision, Congress could pass a law overnight to correct any deficiencies the court believes it may have found, and we expect them to do so,” he said.

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. As of last week, nearly 134,000 D.C. residents, 1.1 million Maryland residents and 1.5 million Virginia residents put their numbers on the registry.

The FCC voted unanimously to add its authority to the do-not-call list and block telemarketers representing airline, financial and telecommunications industries from placing calls. The FCC regulates those industries. On July 29, the American Teleservices Association asked the 10th U.S. Circuit Court of Appeals in Denver to reject the new regulations proposed by the FCC on June 26.

Despite the Oklahoma ruling, consumers can add their telephone numbers to the list by calling 888/382-1222 or by logging onto www.Donotcall.gov.

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