POWELL SAYS FCC WILL ENFORCE DNC LIST

Meanwhile, the FTC filed a motion with the 10th U.S. Court of Appeals, Denver, Tues. seeking an emergency stay pending appeal of the last week’s order (CD Sept 29 p1) by the lower court. The lower court had ruled the FTC’s DNC plan was unconstitutional on freedom of speech grounds and denied late Mon. the FTC’s motion for an emergency stay. “Congress can do nothing at this moment, other than demagogue the issue,” Senate Commerce Committee Chmn. Sen. McCain (R- Ariz.) said.

“The current legal frenzy surrounding the registry has left American consumers in the dark about what to expect tomorrow after the registry opens for business,” McCain said. He said it was unclear whether telemarketers would continue to call people on the DNC list after Oct. 1, when the registry was to be implemented. FTC Chmn. Timothy Muris said the Denver court decision “may leave the FTC unable to put into effect the registry.” He said that although he was “confident” of ultimate success on appeal, “the legal dispute could take years to resolve. In the meantime, the status of the registry is unsettled.”

The Colo. decision also threatens the ability of states with do-not-call laws to enforce them, Muris said. The Telephone Consumer Protection Act (TCPA) prohibits any state that has a DNC registry from its enforcement unless its registry includes the phone numbers of consumers from that state who are on the national DNC registry. “Because it is unclear the extent to which Judge Nottingham’s decision permits the states to access the registry for purposes of enforcement of state law, the decision casts doubt on the ability of states to enforce their do-not-call laws,” Muris said: “Enforcement requires access to the list, and that access is unavailable.”

Meanwhile, Muris said,"we have refused to allow those [telemarketers] that have the list… to share it with others.” As part of a sign-p process, he said, telemarketers had to pledge that they would use the list only for the purpose of complying with the do-not-call requirements. “That part is no longer enforceable through our rules, but it is enforceable through the criminal statutes that prohibit lying to the government,” Muris said: “If we allow the firms that already have the list to trade it or share, there will be no enforcement, and the do-not-call list can quickly become a do-call list in the hands of unscrupulous telemarketers.”

The Colo. court ruled out any distinction between commercial and noncommercial speech, Muris said: “In fact, the court’s decision puts the FTC in an awkward position -- in order to protect consumers from unwanted commercial calls, the FTC would run the risk of creating an impermissible infringement on fully protected speech.” He said the court was “wrong” when trying to equate commercial and charitable speech because “noncommercial calls are less intrusive to consumers because they are more expected.” He said charitable solicitation “enjoys much greater constitutional protection. If we equated commercial and charitable we would be in much greater danger constitutionally than the registry we've created.” Said McCain: “Isn’t there a clear precedent that we do differentiate between charitable and noncharitable activities? We want to encourage charitable activities.”

Powell said the FCC intended to continue to administer and enforce its rules as the litigation proceeded. However, Muris said that was made more difficult because it was “unclear the extent to which Judge Nottingham’s decision permits the FCC to access the registry for enforcement or companies under FCC jurisdiction to access the registry for compliance with the FCC’s rules.” Powell said he couldn’t obtain the list from the FTC because of the court decision, but said “it would be enormously helpful if the industry committed to voluntarily provide the list to the FCC.” Muris said since the registry became available to telemarketers Sept. 2, more than 13,000 organizations had subscribed, and of those more than 400 had accessed and paid for the entire registry.

Direct Mktg. Assn. (DMA) Vp Jerry Cerasale expressed concern that there still were smaller telemarketing firms that couldn’t comply with the registry because they didn’t have the list and didn’t know what numbers they weren’t supposed to call. The FTC has shut down telemarketers’ access to the registry affected by the Nottingham decision. DMA and ATA also complained the FCC and the FTC had ignored their comments when creating the registry. Responding to a question from McCain on whether DMA’s members could move to ATA, since DMA urged them not to call people on the list, while ATA advised their members to use their best judgment on whether to continue to call those on the list, DMA said: “We may lose our membership. We made that decision.”

Meanwhile, senators again expressed their support for the registry. Sen. Lautenberg (D-N.J.) said although he was a “believer in the First Amendment, but I don’t think that First Amendment gave the right” to disturb consumers’ privacy. Sen. Allen (R-Va.) said the registry was “the fastest Web site in the history… Over 50 million phone numbers were registered,… that is more than President Bush or Vice President Gore received in the 2000 election.”