Do Not Call List Blocked!

[Gamer03]

Do Not Call Registry not dead yet!

Written By Bob Sullivan, MSNBC

Consumer groups say Tuesday's federal court ruling that blocks the Do Not Call Registry is just a temporary legal setback, and won't ultimately stop government agencies from preventing most dinner-time telephone interruptions. A U.S. judge has ruled that the Federal Trade Commission overstepped its authority in creating the national do-not-call list against telemarketers. But the FTC has several options to satisfy the court's objections, and state do-not-call lists are unaffected, according to consumer law experts.

IN A LAST-MINUTE reprieve for telemarketers, U.S. District Judge Lee R. West granted a motion for summary judgment requested by the telemarketing industry that -- for now -- stops implementation of the Federal Trade Commission's do-not-call list. Some 50 million phone numbers are registered on the list, which was to take effect Oct. 1. The telemarketing industry claims the list would cost $50 billion in sales if member firms were prevented from calling all of the telephone numbers.
West's ruling leaned on a technicality. He said the FTC did not have authority to regulate the telemarketing industry. Instead, that authority rests with the Federal Communications Commission, he said.

The FTC immediately signaled it would likely appeal.

"This decision is clearly incorrect," FTC Chairman Timothy Muris said in a written statement. "We will seek every recourse to give American consumers a choice to stop unwanted telemarketing calls."

The ruling shocked frustrated consumers, who raced to online Web sites to register their grievances.

"What happened to 'For the people by the people?' " wrote one, on the discussion board Slashdot.org. "Who cares what a judge thinks -- 50 million people can't be wrong. It's our phone number. If we want it on a no-call list it should be our right to put it there."

But consumer advocates say there's no reason for alarm yet. Chris Hoofnagle, associate director of the Electronic Privacy Information Center, said he's confident the judge's ruling would be overturned by a higher court.

"Congress passed a law ... that specifically grants the FTC authority to collect money from telemarketers in order to create a do-not-call list," Hoofnagle said. That implies the agency has authority to regulate telemarketrs, he said, calling the judge's interpretation "weird."

"Under precedent set by the Supreme Court, government agencies have deference (to regulate industries) unless they've acted arbitrarily," Hoofnagle said. "And it's hard to say the FTC acted arbitrarily here."

The FTC has other options, too, said Ari Schwartz, associate director of the Center for Democracy and Technology. It could just switch the entire do-not-call operation over to the FCC. Or Congress could enact a new law with more specific language granting the FTC authority over telemarketers. An obviously popular campaign issue, Schwartz said such a law would be much tougher than the current do-not-call legislation.

"Congress is not going to stop something from happening that 99 percent of the people want," Schwartz said.

House Energy and Commerce Committee Chairman Billy Tauzin, R-La., and Rep. John Dingell, D-Mich., said Wednesday they were confident the ruling would be overturned and believe Congress did give the FTC the necessary authority. "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," they said in a joint statement. The House committee authorized the list.

"I suspect the courthouse in Oklahoma would want to add itself to the 'do not call' database in order to protect itself from the millions of consumers who feel deeply about the right to be left alone by telemarketers," Rep. Ed Markey said.

Meanwhile, the ruling doesn't affect the 30 states which are currently operating or creating their own do-not-call lists. In Pennsylvania, for example, 3.3 million residents have signed up with the attorney general's office, which gives them the same protection from telemarketing calls as the FTC registry.

"This ruling has no impact on what happens in our do-not-call program," said Barbara Petito, spokeswoman for the attorney general's office.

The Direct Marketing Association Inc., one of the plaintiffs, said it was happy with the ruling, even though it "acknowledges the wishes of millions of U.S. consumers who have expressed their preferences not to receive telephone-marketing solicitations -- as evidenced by the millions of phone numbers registered on the FTC list."

The suit was filed by DMA, U.S. Security, Chartered Benefit Services Inc., Global Contact Services Inc. and InfoCision Management Corp.

Telemarketers would have to check the list every three months to see who doesn't want to be called. Those who call listed people could be fined up to $11,000 for each violation.

The Associated Press and Reuters contributed to this report.



Gamer03

[bobolito]

I am sure those judges don't have to be annoyed by telemarketing calls since they probably have someone to answer the phone for them. They should understand that there should have not been a telemarketing industry to begin with. If they think that it will destroy that industry, they they should stop the campaigns against tobacco as that will eventually destroy the tobacco industry and jobs will be lost as well. But I guess I will never understand their one-sided brains. Only God knows how much the telemarketers paid those judges...[img]i/expressions/face-icon-small-wink.gif[/img]

[Gamer03]

Here is another listing link I found.

IMO, it seems as though this battle will be going on for awhile.

Here it is:

Do Not Call list in legal limbo

By Bob Sullivan, MSNBC

The fate of the Federal Trade Commission's Do Not Call Registry appeared to be uncertain Friday, as the agency weighed its options to fight a federal court injunction barring launch of the anti-telemarketing list next week. Legal experts expect the U.S. Supreme Court to take up a Denver judge's order, which sides with telemarketer's arguments that their First Amendment rights have been violated. Ironically, when the do-not-call gets its day in court, the case will turn on a distinction made between commercial and non-profit telemarketing calls -- a distinction the FTC included to avoid First Amendment issues.

THE LEGAL WRANGLING almost certainly will delay launch of the list, which was scheduled for Wednesday, Oct. 1, legal experts said.
The furious last-minute jockeying to stop unsolicited telemarketing continues. A spokeswoman for the Federal Trade Commission said Friday the agency will ask U.S. District Judge Edward Nottingham to allow the list to be implemented while the agency appeals.

FTC Chairman Timothy Muris said Friday the agency will fight the decision.

"I do not believe that our Constitution dictates such an illogical result," Muris said. "To the contrary, our Constitution allows consumers to choose not to receive commercial telemarketing calls."

Muris said that if Nottingham's reasoning were applied elsewhere, it would cripple the more than two dozen state do-not-call lists.

On Thursday, Nottingham ruled in favor of telemarketers who said the FTC's implementation of a do-not-call list violated the marketing firms' First Amendment rights. The judge said it was unfair to allow non-profit telemarketing calls made by political campaigns and charitable organizations, but prevent commercial telemarketing calls.

That distinction was made in the FTC's design of the do-not-call list because it was concerned any effort it made to block political fund-raising phone calls would certainly run afoul of First Amendment issues, said Ari Schwartz, associated director of the Center for Democracy and Technology.

"They were trying to get protected speech out of the way," Schwartz said.

The judge's ruling was fairly technical, said Chris Hoofnagle, associate director at the Electronic Privacy Information Center. In order to allow a government agency to limit commercial speech, it must be able to prove that it substantially advances a state interest, such as personal privacy. Because the do-not-call list blocked only some telemarketing calls, and not others, the judge said the FTC failed to prove it was advancing a state interest.

"The court said the list didn't materially advance privacy, which is absurd," he said.

Both Hoofnagle and Schwartz, supporters of the do-not-call list, said they expected the U.S. Supreme Court would overturn Nottingham's ruling, because non-profit speech -- particularly political speech -- is customarily afforded higher protection than commercial speech.

But it's not entirely a slam dunk, said Garnter analyst Walter Janowski. There can be blurry distinctions between non-profits firms and commercial firms, and that troubled Nottingham, he said.

"The judge said (the FTC is) attempting to draw distinctions between poorly defined categories for which there aren't clear distinctions," he said. "The ruling doesn't say you can't. It says you can't treat them differently without a good cause."

Still, he expected the legal wrangling would eventually settle down, and the do-not-call list would take force perhaps just a few weeks after its scheduled launch.

"It will probably be delayed for at least couple extra weeks. We may need to see adjustments in the way the ruling is phrased," Janowski said. But courts will find a way to side with the massive popular opinion behind the program, he said.

Meanwhile, the telemarketing industry Friday indicated it would voluntarily offer consumers some relief, even as it continues is legal battles.

The largest telemarketing industry group said it wants its members to abide by the national "do-not-call" list next week despite two court rulings that have thrown the program's future into legal limbo.

"We are telling our members, yes indeed, we don't want you calling people who have told anyone they don't want any calls," Direct Marketing Association President H. Robert Wientzen said Friday. He said he hasn't had time to arrange agreements making that request binding, but "up to the moment I have had nobody disagree."

SHOWDOWN BEGAN IN OKLAHOMA
The legal and legislative gymnastics started Tuesday when U.S. District Judge Lee R. West in Oklahoma blocked the Oct. 1 rollout of the list, saying that the FTC had overstepped its authority by creating the registry.

That legal hurdle was scaled by Congressional action. The House jumped in Thursday, approving by 412-8 a measure designed to counter the Oklahoma judge's ruling. Then the Senate voted 95 to zero to reinstate the list and send it on to President Bush, who indicated he would approve it.

But late Thursday, Nottingham stepped into the fray, giving telemarketers a critical legal victory.

Nottingham agreed with the telemarketers' claims that allowing charitable solicitations but banning commercial calls "borrows from the reasoning of the pigs in George Orwell's 'Animal Farm.' ... 'Some animals are more equal than others.'"

The judge granted a summary judgment to the telemarketing firms, and barred the FTC from launching the registry next week.

"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," the judge wrote.

Nottingham's decision set off another round of complaints from consumers, who vocally objected to West's ruling Tuesday and have expressed overwhelming support for the do-not-call list. More than 50 million phone numbers have been entered into the FTC's list.

On Tuesday, West had ruled that the FTC didn't have proper authority to regulate telemarketers, indicating only the FCC could do so. Thursday, West denied an FTC request to stay his order while the agency files an appeal.

Nottingham and West actually disagreed over the issue of the FTC's authority -- Nottingham dismissed that claim by the telemarketers.

Earlier Thursday, do-not-call supporters thought they had won a solid victory in the legal tussle, with Congress swiftly passing a law that essentially negated West's court ruling.

"(West) in this case is dead wrong and I'm sure his decision will in turn be overturned," said Rep. Billy Tauzin, R-La., chairman of the House Energy and Commerce Committee. "We should probably call the bill 'This Time We Really Mean It Act' to cure any myopia in the judicial branch. The bill leaves no doubt as to the intent of Congress."

The bill says the FTC may operate the list, which was approved by Congress last year.

Consumer advocates hailed Congress' quick action in light of West's ruling yesterday.

"I've never seen government work so fast as they have in past 24 hours," said Diana Mey, a private citizen who's been one of the most vocal do-not-call supporters for the past three years. "The news yesterday was very upsetting ... I was just stunned like everybody else."

The FTC hopes the list will block 80 percent of telemarketing calls. Exemptions include calls from charities, pollsters and political campaigns.

The FTC's rules require telemarketers to check the list every three months to see who doesn't want to be called. Those who call listed people could be fined up to $11,000 for each violation. Consumers would file complaints to an automated phone or online system.

Despite the legal wrangling, the FTC is moving ahead with the list and is encouraging consumers to continue signing up.

Telemarketers say the list would devastate their industry and lead to the loss of thousands of jobs. The Direct Marketing Association, one of the groups that challenged the registry, said it hadn't decided whether its members would stop calling people on the list starting next Wednesday.

Since the FTC opened the do-not-call list for registration in June, people have submitted 31.1 million phone numbers at the Web site www.donotcall.gov and 10.9 million by calling toll-free at 1-888-382-1222. An additional 8.6 million numbers were transferred from existing state lists.

There are about 166 million residential phone numbers in the United States and an additional 150 million cell phone numbers.

The Associated Press and Reuters contributed to this report.



Gamer

[IowaUser]

Originally posted by: bobolito I am sure those judges don't have to be annoyed by telemarketing calls since they probably have someone to answer the phone for them. They should understand that there should have not been a telemarketing industry to begin with. If they think that it will destroy that industry, they they should stop the campaigns against tobacco as that will eventually destroy the tobacco industry and jobs will be lost as well. But I guess I will never understand their one-sided brains. Only God knows how much the telemarketers paid those judges...[img]i/expressions/face-icon-small-wink.gif[/img]

I really hope this whole response was a joke. Everyone gets telemarketing phone calls; judges go home at night just like anyone else. I don't understand what you mean by saying "that there should have not been a telemarketing idustry to begin with." No one decided to create the telemarketing industry. Market forces created this industry. After all, if the telemarketing companies weren't making money, there wouldn't be a telemarketing industry. In our free market society, what is not prohibited is allowed. Hence we are a free nation. You joke around a lot on this forum, so I hope this is another joke, otherwise I have to wonder... [img]i/expressions/face-icon-small-smile.gif[/img]

I do think that the do-not-call list will succeed. If you've read the decision out of Colorado, the plantiffs' brief actually quotes George Orwell's book "Animal Farm": "Some animals are more equal than others." That's hilarious. What a great legal theory!? The do-not-call list will not fail because it is unconstitutional. The First Amendment does not protect commercial speech like other types of speech, so I don't think this case will get caught up on constitutional questions. Once this case hits a circuit court, the panel will find that the FTC is satisfying its goal of protecting consumers and allow the do-not-call list. Surely we don't have to pass a constitutional amendment to have a do-not-call list. Anyways, that's my take on the situation. We'll be laughing about this is a few months. I wouldn't worry about this.

[Shizam76]

Originally posted by: bobolitoI am sure those judges don't have to be annoyed by telemarketing calls since they probably have someone to answer the phone for them. They should understand that there should have not been a telemarketing industry to begin with. If they think that it will destroy that industry, they they should stop the campaigns against tobacco as that will eventually destroy the tobacco industry and jobs will be lost as well. But I guess I will never understand their one-sided brains. Only God knows how much the telemarketers paid those judges...[img]i/expressions/face-icon-small-wink.gif[/img]

bobolito....I hope someone, somehow gets all the phone numbers of these judges, home, work and cell, and bombards them all day and night with sales calls....when they lay down to take a nap, when they are eating dinner and when they are doing things with their children and grandchildren. I bet then they would re-think their decision [img]i/expressions/face-icon-small-wink.gif[/img]

[bobolito]

You bet!...by next weekend they'll be reversing their decision! [img]i/expressions/face-icon-small-wink.gif[/img] LOL....

Anyway, I have good news. It seems that the FCC is on our side. Read this article:

FCC Steps in to Enforce Do-Not-Call List

Viva la FCC!

Why can't the power of the President, the congress, the people and two government agencies overthrow the power of a couple of shortsighted judges?

[IowaUser]

Originally posted by: bobolito Why can't the power of the President, the congress, the people and two government agencies overthrow the power of a couple of shortsighted judges?

I don't mean to keep quoting you but you bring up a question I've been hearing lately. Ordinarily, when Congress and the President sign a bill into law, that law trumps judicial decisions. The exception is constitutional questions. The Colorado district court decision would control over regular legislation because the court said this bill was a violation of free speech in the 1st Amendment. Only a constitutional amendment could overturn the district court's decision without overturning that decision. The 10th Circuit overturned that decision and the Supreme Court has not granted certiorari (review of the case). Unless the Supreme Court overturns the 10th Circuit, which is highly unlikely considering the bipartisan support for this bill, the FCC's power in this realm is final. This answer was really wordy, but the three-word answer to your question is: United States Constitution (via the Supremacy Clause in Marbury v. Madison).

[bobolito]

Thanks....I had an idea it had something to do with some conflict between the three branches of the government (Judicial, Executive and Legislative). If you ask me how to block policy inheritance in an Organizational Unit in Windows 2000 Server, I can give you a lecture on that [img]i/expressions/face-icon-small-wink.gif[/img] but when it comes to all this political jargon, I am lost.

Anyway, here is a quote from an article I found:
"The Judicial branch can check both the Executive branch and the Legislative branch by
declaring that laws passed by either branch are unconstitutional."
http://www.law.indiana.edu/outreach/...tionPowers.pdf