- The Washington Times - Tuesday, September 30, 2003

The national “do-not-call” registry goes into effect today, but ongoing legal disputes will make it impossible for the federal government to block all unsolicited telemarketing calls.

A district court judge’s decision late Monday prevents — at least temporarily — the Federal Trade Commission and Federal Communications Commission from offering consumers the protection from telemarketers they planned to provide.

Despite the latest legal maneuver in the battle between telemarketers and the federal government, FCC Commissioner Michael Powell and FTC Commissioner Timothy Muris assured lawmakers during a Senate Commerce, Science and Transportation Committee hearing yesterday that the do-not-call registry will take effect today as planned.

But it is not clear how effective the government will be in forcing telemarketers to comply with the registry, which has grown by almost 1 million phone numbers in the last week, to a total of 51.5 million.

“It can’t be enforced the way it was designed. This doesn’t mean consumers will be without protection,” Mr. Muris told reporters after testifying.

U.S. District Judge Edward Nottingham late Monday denied a motion filed by the FTC to suspend his decision and let the do-not-call list stand pending appeals of a ruling that the registry is unconstitutional. Judge Nottingham said the FTC can’t share the do-not-call list with the FCC, the agency that will enforce the new telemarketing rules.

The decision also prevents the FTC from distributing the list to telemarketers while the courts rule on its constitutionality.

The FTC appealed Judge Nottingham’s decision yesterday at the 10th U.S. Circuit Court of Appeals.

The FTC’s appeal says Judge Nottingham’s order, “if allowed to remain in effect, will not only deprive millions of Americans of the protection they expressly have requested from unwanted, intrusive telemarketing calls, but will also conflict with a ruling” already issued by the court. The appeals court ruled Friday that the FCC can enforce the do-not-call list.

Because no more copies of the list can be distributed, the FCC can penalize only the telemarketers that already have it.

Mr. Powell said the convoluted situation will make it difficult but not impossible to punish violators.

Forty-five states, Puerto Rico and the District of Columbia filed a friend-of-the-court brief yesterday supporting the FTC’s appeal.

While the 10th U.S. Circuit Court of Appeals considers Judge Nottingham’s decision, the FCC is searching for ways to gain access to the do-not-call list and verify which telemarketers have it.

“It is important to understand this is a fluid scenario. Each day we learn another piece,” Mr. Powell said. “We have to wait and see the full range of cards we can play.”

Consumers can file complaints about do-not-call list violations with the FCC by sending e-mail to [email protected] or by calling 888/225-5322. The FTC has shut down its Web site that accepts complaints about violations of the registry. For now, consumers still can add their phone numbers to the do-not-call list.

About 400 telemarketers have the entire do-not-call list, and about 5,000 have portions of it, the FTC said.

Consumers still may get marketing pitches from telemarketers who don’t have access to the list, Mr. Powell said.

The FCC can fine companies up to $120,000 for calling phone numbers on the registry.

Lawmakers said yesterday they are baffled by the endless legal maneuvering over the registry, which has gained widespread support.

Sen. Ron Wyden, Oregon Democrat, told representatives of the Direct Marketing Association and the American Teleservices Association who attended the hearing that they could end the legal wrangling.

“People are on a legal roller coaster. Your two organizations can do a lot to bring that to an end,” he said.

“Why does it have to be so hard to say no?”

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