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On-Again, Off-Again Do-Not-Call List is Back On

By Oct 09, 2003

An appeals court on Tuesday gave the green light to the Federal Trade Commission to enforce its national Do-Not-Call Registry, while a U.S. appeals court decides whether the registry violates telemarketers’ free speech.

As the legal wrangling continues, the ruling in the U.S. 10th Circuit Court of Appeals effectively prevents telemarketers from dialing the 51 million phone numbers registered on the list.

“This is an important victory for American consumers,” FTC Chairman Timothy J. Muris said in a statement. “We believe the rule fully satisfies the requirements of the U.S. Constitution, and we will now proceed to implement and enforce the Do-Not-Call Registry.”

Telemarketers can be fined up to $11,000 per violation.

The Promotion Marketing Association has encouraged its members to comply with the list since it took effect Oct. 1.

“From our perspective it’s another chapter in an interesting legal saga,” said Linda A. Goldstein, a partner with law firm Hall Dickler Kent Goldstein & Wood, New York City, and the co-chair of the PMA’s Government and Legal Affairs Committee. “We continue to support consumer choice and decision.”

She added that the PMA looks forward to a finalize resolution in the courts.

“There are two very different legal issues at play here,” Goldsteinsaid. “One is the FTC’s statutory authority and the other is the constitutionality. We look forward to seeing how both issues are resolved in the final analysis. We expect there will be ups and downs in this legal process.”

The Direct Marketing Association, which had filed a lawsuit along with others to stop the FTC list, continues to say that it is not the proper role of government to create and implement a national Do-Not-Call list. The Association is considering all options in light of the court of appeals decision to handle the case quickly, the DMA said in a statement.

House Energy and Commerce committee Chairman Billy Tauzin (R-LA), a key figure in getting Do-Not-Call legislation enacted, believes the court will ultimately rule in favor of the Registry.

“This decision is great news for consumers and families,” Tauzin said in a statement. “In effect it says ‘hello’ to common sense. Finally, a federal court has recognized that Americans have a right to say ‘goodbye’ to unwanted calls from pesky telemarketers. I’m confident that the constitutionality of the Do-Not-Call Registry will ultimately be upheld by the courts.”

In February, Congress approved legislation and funding necessary for the FTC to implement the national registry. After lawsuits were filed by The Direct Marketing Association and others objecting to the list, a federal district court judge in Oklahoma ruled in September that the FTC did not have the authority to initiate a national Do-Not-Call Registry. Congress moved quickly to sign legislation reaffirming the FTC’s authority to establish and enforce the Registry. Soon after another federal court in Colorado ruled that the FTC’s Do-Not-Call Registry was unconstitutional on free-speech grounds because it applies to calls from businesses but not charities. On Sept. 29, President Bush signed legislation authorizing the Federal Communications to begin enforcing the list on the day it was expected to take effect, Oct. 1.

Oral arguments are set for Nov. 10 in Tulsa, OK.