Subject: [NEXTEL-1] Appeals Court Smiles on 'Do Not Call' List

From: [email-masked]
Date: Sat, 27 Sep 2003 21:19:53 -0400

Appeals Court Smiles on 'Do Not Call' List

Sep 26, 2003

By Andy Sullivan

WASHINGTON (Reuters) - A U.S. appeals court said on Friday it would likely
approve an anti-telemarketing measure that two lower courts had blocked days
earlier, adding a further twist to what has been a rollercoaster week for
the popular program.

The 10th Circuit Court of Appeals in Denver denied a request by
telemarketers to halt the federal government's "do not call" list and said
it would likely rule in favor of the measure when it soon hears the case.

The telemarketers "have failed to establish a substantial likelihood of
success on the merits," a three-judge panel said.

The decision has no immediate effect on two lower-court rulings that
sidelined the list earlier this week, meaning that consumers who placed some
50 million phone numbers on the no-call list will likely still receive
telemarketing calls after Oct. 1, the original start date.

The appeals-court decision capped a whirlwind week which saw Congress move
with uncharacteristic speed to overcome the objections of a federal court in
Oklahoma City, which said the Federal Trade Commission lacked authority to
run the list.

But to Congress' dismay, another court in Denver struck it down again, this
time on free-speech grounds.

The appeals panel ruled on a third challenge -- to the Federal
Communications Commission's role in helping the FTC develop the list.

Nevertheless, the appellate decision provided an important clue to how the
court is likely to rule on free speech issues brought up by the list.

Telemarketers say the list infringes their free speech rights under the U.S.
Constitution, while the government says commercial speech such as theirs is
entitled to less protection.

The appeals panel said that while telemarketers will be harmed by the
no-call list, which would deny them millions of sales prospects, that
concern is outweighed by the privacy interests of the tens of millions of
Americans.

The panel said it would hear the challenge to the FCC's role on an expedited
basis.

The FTC said it was confident the do not call list would survive, a view
backed up by several legal experts.

"Our constitution allows consumers to choose not to receive commercial
telemarketing calls," FTC Chairman Timothy Muris said in a statement. "We
will seek every recourse to give American consumers a choice to stop
unwanted telemarketing calls."

Though the Denver appeals court has decided consumer-privacy cases for
commercial interests in the past, a Supreme Court decision that allows
consumers to block junk mail should loom large in the no-call case, said
David Sobel, chief counsel at the Electronic Privacy Information Center.

"There's a strong precedent on the side of consumers' rights to prevent
intrusions into their homes," said Sobel.

ENFORCING A LIST THAT DOESN'T EXIST?

A spokesman for a telemarketers' organization which filed suit against the
FCC said he didn't yet know what to make of the thicket of rulings.

"A cursory review would say that the FCC is entitled to enforce a list that
constitutionally doesn't exist, which is confusing," said Tim Searcy,
executive director of the American Teleservices Association.

Confusion seemed to extend to the halls of government, as well, where
bureaucrats puzzled over the latest twist.

"We haven't uncorked any champagne yet," said one government source who
declined to be named.

Lawmakers, fresh from Thursday's bipartisan vote, said they believed the
list did not infringe free-speech rights.

"Putting your name on the do-not-call list is no different than hanging a
'no solicitation' sign on your front door," said Reps. Billy Tauzin and John
Dingell, the chairman and top Democrat, respectively, on the House Energy
and Commerce Committee.

Privacy advocate Jason Catlett predicted the list would eventually see the
light of day.

"Consumers have the unusually lucky combination of strong support from the
FTC, the FCC, the White House, and Congress here, and so I'm confident that
it will come out fine," said Catlett, president of the Junkbusters Corp.
consulting firm.

http://reuters.com/newsArticle.jhtml?type=topNews&storyID=3517072

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