- The Washington Times - Thursday, September 25, 2003

Congress stepped in quickly yesterday to ensure consumers can block unsolicited calls from telemarketers next week when the national “do-not-call” registry is scheduled to take effect.

But the service 50.6 million Americans signed up for was put in doubt again when a federal court judge ruled the list violates free-speech protections.

U.S. District Judge Edward W. Nottingham in Denver blocked the list late yesterday, handing another victory to telemarketers who argued the national registry is unconstitutional and will devastate their industry.

“The Federal Trade Commission has chosen to entangle itself too much in the consumers’ decision by manipulating consumer choice and favoring speech by charitable [organizations] over commercial speech,” wrote Judge Nottingham, appointed in 1989 by President Bush.

U.S. District Judge Lee R. West on Wednesday ruled the FTC did not have the authority to create or run the list.

The House voted 412-8 to give the Federal Trade Commission authority to establish and enforce the national registry of phone numbers telemarketers will be prohibited from calling. Senators followed with a 95-0 vote approving the same bill.

The president said in a statement last night that “I look forward to signing” the bill because “unwanted telemarketing calls are intrusive, annoying and all too common.” But White House spokesmen had no immediate comment on Judge Nottingham’s ruling.

Ken Johnson, spokesman for Rep. Billy Tauzin, Louisiana Republican and 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 staff members were reviewing the Denver decision.

Judge West yesterday denied the FTC’s motion to stay his decision while it appeals the ruling. Now the FTC must ask him to dismiss his order in light of the new law granting the FTC authority to establish the do-not-call list.

But FTC spokeswoman Cathy MacFarlane told Cox News Service that the agency was still pushing ahead with its plan to put the registry into effect next week and “there has been no hiatus in the planning for the enforcement stage.” There was no FTC comment on Judge Nottingham’s ruling.

Despite the legal confusion, lawmakers blistered Judge West yesterday.

“Fifty million Americans cannot be wrong,” said Rep. John D. Dingell, Michigan Democrat.

Sen. Charles E. Schumer, New York Democrat, called Judge West’s ruling “goofy.”

Rep. Fred Upton, Michigan Republican, threatened during televised debate to give out the judge’s phone number.

In fact, angry consumers flooded Judge West with calls yesterday after finding his Oklahoma City courthouse phone number (405/609-5140) plastered on the Web.

House and Senate measures to give the FTC the authority it needs to establish and enforce the do-not-call list began to appear late Wednesday. Leadership in both chambers ensured they would allow votes on bills to let consumers block calls and override Judge West’s unpopular decision to invalidate the registry.

“Congress is making it very clear that we want to give Americans this right,” said Mr. Tauzin, who sponsored the bill introduced in the House and Senate.

Rep. Edward J. Markey, Massachusetts Democrat, said the do-not-call list will help telemarketing firms avoid wasting time and money because it includes 50.6 million phone numbers of people likely to hang up on them when they call.

Tim Searcy, executive director of the American Teleservices Association, said Congress is creating two classes of telemarketers by approving the rules — commercial telemarketers who must abide by the do-not-call provisions and telemarketers representing charities and pollsters who still can make unsolicited calls to consumers.

That amounts to a restriction of the industry’s free-speech rights, Mr. Searcy said. In its lawsuit filed in Denver, the association argued the FTC gives charities “First Amendment rights that others don’t have.”

Lawmakers dispute the industry’s First Amendment argument.

“The Constitution gives you the right to free speech. It does not give you the right to be heard,” Mr. Tauzin said during debate on the House floor.

Just eight members of Congress voted against the bill — five Republicans and three Democrats in the House.

Rep. Ted Strickland, Ohio Democrat, said he supports a do-not-call list but thinks it will harm telemarketers, which employ about 1,000 people in his rural district. Unemployment is as high as 13.5 percent in one county he represents.

“We have had a hemorrhaging of jobs the past two decades as steel mills have closed and shoe factories have closed. I would never minimize the aggravation people experience when they get telemarketing calls, but I had to determine what is the greater good. I chose jobs over eliminating an inconvenience,” Mr. Strickland said.

Regulators expect the do-not-call list to screen 80 percent of the 104 million calls telemarketers attempt each day.

Telemarketers could be fined $11,000 if they phone consumers who have added their number to the list.

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