Second US Judge Backs Telemarketers As Congress Legalizes List

26 September 2003

The October 1 launch of America’s groundbreaking 'do-not-call' list is now in question despite legislation rushed through Congress Wednesday to give the Federal Trade Commission move legal clarification [WAMN: 25-Sep-03|Federal Communications Commission].

The cat was thrown among the pigeons Thursday by a second court ruling, this time from Denver, Colorado, where US District Court Judge Edward W Nottingham also ruled in favor of the telemarketers' case. He held the FTC’s 'do-not-call' policy to be in violation of the First Amendment because it allowed calls from charities but not commercial enterprises.

In his 34-page written ruling Judge Nottingham opined that the FCC “has chosen to entangle itself too much in the consumer’s decision by manipulating consumer choice and favoring” charitable over commercial speech.

According to the judge, the First Amendment prohibits any US government from adopting laws that give a preference to one type of speech over another when the content isn’t significantly different. “Because the do-not-call registry distinguishes between the indistinct, it is unconstitutional under the First Amendment,” he ruled.

American Teleservices Association lawyer Sean R Gallagher threw his hat in the air: “I think there's a high, high likelihood that the do-not-call registry will not be implemented next week,” he whooped.

The Denver ruling, Gallagher believes, is a roadmap for the industry to file suits against individual states that run their own do-not-call registries and the ATA already has one such case awaiting a hearing in Colorado.

The whole issue is extraordinarily complex, according to lawyers. It is uncertain where this leaves Wednesday’s vote in the House which was intended to give full force of law to the FTC’s list.

Judge Nottingham and his Oklahoma City counterpart, Judge Lee West, are not top of the pops on Capitol Hill. Fumed House Energy and Commerce Committee chairman Billy Tauzin (Republican, Louisiana): “Perhaps we should call this bill the 'This Time We Really Mean It Act' to cure any misunderstanding in the judicial branch.”

Meantime, the Direct Marketing Association [WAMN: 04-Apr-02|Direct Marketing Association] counselled its members to abide by the list even before its ultimate legality is decided. Marketers should “respect the wishes of consumers who have placed their phone numbers on the FTC’s list,” said DMA president/ceo H Robert Wientzen.

Over 5,000 companies already have purchased the list from the FTC.

Data sourced from: The Wall Street Journal Online; additional content by WARC staff