MESSAGE
| DATE | 2003-09-25 |
| FROM | Ruben Safir Secretary NYLXS
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| SUBJECT | Subject: [hangout] No Call List hung up in Court
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No-Call List Dealt Setback in Court Ruling
By MATT RICHTEL
Federal regulators overstepped their authority in establishing a national do-not-call registry, according to a federal district court ruling made public yesterday. The decision appears to block, at least temporarily, the national program scheduled to begin Oct. 1 that is aimed at preventing telemarketers from calling the 50 million phone numbers Americans have put on the list.
Congressional leaders say they intend to introduce legislation in the next few weeks that would give regulators explicit authority to enforce the federal do-not-call regulation, which has proved to be immensely popular with consumers.
The ruling, issued on Tuesday by the United States District Court for the Western District of Oklahoma, found that Congress had not given authority to the Federal Trade Commission to establish the national registry.
Senator Charles E. Schumer of New York said the court decision misinterpreted Congress's intentions. "This is the goofiest decision I've seen in a long time," he said. "There's no question that Congress is going to correct this."
On this issue, he said, "Everyone has come together."
Billy Tauzin, Republican of Louisiana, the chairman of the House Committee on Energy and Commerce and John D. Dingell of Michigan, the committee's ranking Democrat, pledged in a statement to "take whatever legislative action is necessary to ensure consumers can stop intrusive calls from unwanted telemarketers."
In his ruling, District Judge Lee R. West seemed to agree that consumers are frustrated, but he wrote that the F.T.C. is not authorized to establish a do-not-call registry under current law.
"Admittedly," Judge West wrote, "the elimination of telemarketing fraud and the prohibition of deceptive and abusive telemarketing acts or practices are significant public concerns." But, he said, the power to regulate on this front must be grounded in a grant of authority from Congress. "Absent such a grant of authority in this case, the court finds the do-not-call provision to be invalid."
The Federal Trade Commission filed a motion yesterday for a stay pending appeal of the court ruling. "This decision is clearly incorrect. We will seek every recourse to give American consumers a choice to stop unwanted telemarketing calls," said Timothy J. Muris, the chairman of the agency.
Tim Searcy, the executive director of the American Teleservices Association, a trade group representing telemarketers, said the decision as it stands would allow phone solicitors to call without risking fines on Oct. 1. "It sure seems they will be able to continue to do business as normal," he said.
Since July, millions of Americans have signed up for the do-not-call registry. Under the rules, telemarketers who call numbers on the list risk fines of up to $11,000 per violation.
The telemarketers have argued that the registry will be a huge blow to business because it will limit the phone numbers they are allowed to call. The industry has said it will lose two million jobs by Christmas, but federal regulators have said that figure is overblown.
Industry groups have challenged the establishment and enforcement of the registry in several lawsuits. The case decided on Tuesday was brought by the Direct Marketing Association, a trade group, and several telemarketers, who argued that the F.T.C. did not have the requisite statutory authority.
The court, in agreeing with the telemarketers, found that Congress had given such authority instead to the Federal Communications Commission, a separate agency. The ruling does not affect do-not-call lists created by more than two dozen states.
Experts in telecommunication law said the legal issues, and the implications of the court's decision, were complex and not altogether clear.
D. Reed Freeman, a lawyer formerly with the Federal Trade Commission, said one crucial issue that was not yet clear was whether the F.C.C. will now go ahead and oversee the do-not-call registry itself.
Up to this point, both the F.T.C. and the F.C.C. have promulgated do-not-call rules, but the trade commission has taken the lead on maintaining the registry. Mr. Freeman said that, should today's ruling be affirmed by a higher court, the F.C.C. might find itself having to take control of the registry.
Lawyers for telemarketers have said they do not think the communications commission will move forward without the trade commission taking the lead. In a statement yesterday, Michael K. Powell, chairman of the F.C.C., said, "We will work closely with the F.T.C. and Congress to ensure that the do-not-call registry becomes a reality and American consumers can control the calls that come into their homes."
There are at least two other legal challenges to the do-not-call registry pending in federal courts. The American Teleservices Association is separately challenging the F.T.C. rules in a federal district court in Denver and is challenging the F.C.C. rules in the United States Court of Appeals for the 10th Circuit. According to lawyers involved in the case, the statute governing F.C.C. authority requires that challenges to that agency's rules be filed in the appeals court.
Robert Corn-Revere, a lawyer for the teleservices association, said that the ruling in Oklahoma did not have a direct impact on the other two cases. Nonetheless, he said, "This confirms the argument we've been making that the F.T.C. has been engaging in regulatory imperialism." He said the suits filed by his association put more emphasis on First Amendment issues raised by the national do-not-call list.
For the time being, the court ruling in Oklahoma has been met with glee from phone solicitors.
"That's the best news I've received all year," said the owner of a telemarketing business that sells mortgage refinances. The business owner requested anonymity because she said she recently appeared in media reports and has received threatening mail from people who hate telemarketers.
"I can't tell you how amazed I am," the telemarketer said of the court ruling.
The Direct Marketing Association acknowledged that the court ruling did not solve its public relations problem.
"We're pleased the court has agreed with us. On the other hand we're concerned about consumers who think we want to make calls when they don't want to receive them," said Bob Wientzen, chief executive of the association.
He also said the industry would like to work with the government to find a solution acceptable to telemarketers and consumers. No-Call List Dealt Setback in Court Ruling
By MATT RICHTEL
Federal regulators overstepped their authority in establishing a national do-not-call registry, according to a federal district court ruling made public yesterday. The decision appears to block, at least temporarily, the national program scheduled to begin Oct. 1 that is aimed at preventing telemarketers from calling the 50 million phone numbers Americans have put on the list.
Congressional leaders say they intend to introduce legislation in the next few weeks that would give regulators explicit authority to enforce the federal do-not-call regulation, which has proved to be immensely popular with consumers.
The ruling, issued on Tuesday by the United States District Court for the Western District of Oklahoma, found that Congress had not given authority to the Federal Trade Commission to establish the national registry.
Senator Charles E. Schumer of New York said the court decision misinterpreted Congress's intentions. "This is the goofiest decision I've seen in a long time," he said. "There's no question that Congress is going to correct this."
On this issue, he said, "Everyone has come together."
Billy Tauzin, Republican of Louisiana, the chairman of the House Committee on Energy and Commerce and John D. Dingell of Michigan, the committee's ranking Democrat, pledged in a statement to "take whatever legislative action is necessary to ensure consumers can stop intrusive calls from unwanted telemarketers."
In his ruling, District Judge Lee R. West seemed to agree that consumers are frustrated, but he wrote that the F.T.C. is not authorized to establish a do-not-call registry under current law.
"Admittedly," Judge West wrote, "the elimination of telemarketing fraud and the prohibition of deceptive and abusive telemarketing acts or practices are significant public concerns." But, he said, the power to regulate on this front must be grounded in a grant of authority from Congress. "Absent such a grant of authority in this case, the court finds the do-not-call provision to be invalid."
The Federal Trade Commission filed a motion yesterday for a stay pending appeal of the court ruling. "This decision is clearly incorrect. We will seek every recourse to give American consumers a choice to stop unwanted telemarketing calls," said Timothy J. Muris, the chairman of the agency.
Tim Searcy, the executive director of the American Teleservices Association, a trade group representing telemarketers, said the decision as it stands would allow phone solicitors to call without risking fines on Oct. 1. "It sure seems they will be able to continue to do business as normal," he said.
Since July, millions of Americans have signed up for the do-not-call registry. Under the rules, telemarketers who call numbers on the list risk fines of up to $11,000 per violation.
The telemarketers have argued that the registry will be a huge blow to business because it will limit the phone numbers they are allowed to call. The industry has said it will lose two million jobs by Christmas, but federal regulators have said that figure is overblown.
Industry groups have challenged the establishment and enforcement of the registry in several lawsuits. The case decided on Tuesday was brought by the Direct Marketing Association, a trade group, and several telemarketers, who argued that the F.T.C. did not have the requisite statutory authority.
The court, in agreeing with the telemarketers, found that Congress had given such authority instead to the Federal Communications Commission, a separate agency. The ruling does not affect do-not-call lists created by more than two dozen states.
Experts in telecommunication law said the legal issues, and the implications of the court's decision, were complex and not altogether clear.
D. Reed Freeman, a lawyer formerly with the Federal Trade Commission, said one crucial issue that was not yet clear was whether the F.C.C. will now go ahead and oversee the do-not-call registry itself.
Up to this point, both the F.T.C. and the F.C.C. have promulgated do-not-call rules, but the trade commission has taken the lead on maintaining the registry. Mr. Freeman said that, should today's ruling be affirmed by a higher court, the F.C.C. might find itself having to take control of the registry.
Lawyers for telemarketers have said they do not think the communications commission will move forward without the trade commission taking the lead. In a statement yesterday, Michael K. Powell, chairman of the F.C.C., said, "We will work closely with the F.T.C. and Congress to ensure that the do-not-call registry becomes a reality and American consumers can control the calls that come into their homes."
There are at least two other legal challenges to the do-not-call registry pending in federal courts. The American Teleservices Association is separately challenging the F.T.C. rules in a federal district court in Denver and is challenging the F.C.C. rules in the United States Court of Appeals for the 10th Circuit. According to lawyers involved in the case, the statute governing F.C.C. authority requires that challenges to that agency's rules be filed in the appeals court.
Robert Corn-Revere, a lawyer for the teleservices association, said that the ruling in Oklahoma did not have a direct impact on the other two cases. Nonetheless, he said, "This confirms the argument we've been making that the F.T.C. has been engaging in regulatory imperialism." He said the suits filed by his association put more emphasis on First Amendment issues raised by the national do-not-call list.
For the time being, the court ruling in Oklahoma has been met with glee from phone solicitors.
"That's the best news I've received all year," said the owner of a telemarketing business that sells mortgage refinances. The business owner requested anonymity because she said she recently appeared in media reports and has received threatening mail from people who hate telemarketers.
"I can't tell you how amazed I am," the telemarketer said of the court ruling.
The Direct Marketing Association acknowledged that the court ruling did not solve its public relations problem.
"We're pleased the court has agreed with us. On the other hand we're concerned about consumers who think we want to make calls when they don't want to receive them," said Bob Wientzen, chief executive of the association.
He also said the industry would like to work with the government to find a solution acceptable to telemarketers and consumers.
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