WASHINGTON — A federal judge in Denver late Thursday ruled that the government’s plan to curb unsolicited telemarketing calls was unconstitutional, another blow to plans to implement a national do-not-call list next week.
The decision by U.S. District Judge Edward Nottingham was announced just minutes after Congress, in a rare display of speed and bipartisanship, voted to overturn another federal judge’s decision on the matter.
Since late June, consumers have registered more than 50 million phone numbers on the Federal Trade Commission’s anti-telemarketing list. Under the agency’s plans, enforcement was to begin Oct. 1, with telemarketers risking an $11,000 fine each time they called a number on the list.
Nottingham found the do-not-call plan unconstitutional on freedom-of-speech grounds because it would have allowed telemarketers for charitable organizations to continue to call numbers on the list even though commercial firms would be barred from doing so.
"There is no doubt that unwanted calls seeking charitable contributions are as invasive to the privacy of someone sitting down to dinner at home as unwanted calls from commercial telemarketers," Nottingham wrote. By exempting charitable solicitations, the FTC "has imposed a content-based limitation on what the consumer may ban from his home … thereby entangling the government in deciding what speech consumers should hear."
"The First Amendment prohibits the government from enacting laws creating a preference for certain types of speech based on content, without asserting a valid interest, premised on content, to justify its discrimination," the judge said.
The ruling was one more twist in an intensifying legal battle, just one week before the do-not-call list was to take effect.
On Thursday, a little more than 24 hours after legislators learned of an Oklahoma City federal judge’s ruling invalidating the FTC national registry, the House approved, by 412 to 8, a measure giving the agency the go-ahead to launch its anti-telemarketing program. Five hours later, the Senate followed suit, voting 95 to 0 to approve an identical bill.
Congress’ goal was to have the measure on President Bush’s desk for his signature today, so Americans could start getting fewer telemarketing calls starting Oct. 1. President Bush issued a statement saying he looked forward to signing the measure. "The millions of people who have signed up for the list have the right to reduce unwanted telephone solicitations," he said.
Congress was responding to a decision issued by U.S. District Judge Lee West of Oklahoma City. West ruled that the FTC lacked specific authority from Congress to develop and enforce the do-not-call list.
In approving its legislation Thursday, congressmen sought to tell the judge otherwise. "We should probably call the bill the ‘This Time We Really Mean It Act’," said Rep. Billy Tauzin, R-La., who as chairman of the House Energy and Commerce committee, spearheaded the congressional move to adopt the legislation.
"The court decision was goofy," said Sen. Charles Schumer, D-N.Y. "Fifty million people can’t be all wrong."
Thursday night after Nottingham’s ruling was released, Tauzin spokesman Ken Johnson said the committee was reviewing the decision. "We will begin exploring our options tomorrow. If the decision is based solely on constitutional grounds, we’re confident it will be overturned."
FTC officials were unavailable for comment Thursday night to say what the agency’s next step would be.
The Denver case was brought by the American Teleservices Association, which represents telemarketing firms. Even before Nottingham issued his opinion Thursday, the association’s executive director, Tim Searcy, had been advising members that, in light of the Oklahoma ruling, they should continue calling numbers on the do-not-call list beyond Oct. 1.
The Oklahoma suit against the FTC was brought by the Direct Marketing Association. In spite of the court ruling, this group issued an advisory to its members Thursday telling them to "respect the wishes of consumers who have placed their phone numbers on the FTC list." The group’s president, Robert Wientzen, said, "We have always said we do not want to make calls to people who do not want to receive calls."
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