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Privacy: Do-not-call list active tomorrow |
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Supreme Court order backs national mandate limiting telemarketers
By Lyle Denniston and Wayne Washington,
Globe Correspondent and Globe Staff,
9/30/2003
WASHINGTON -- The federal government, aided by an order yesterday by Supreme Court Justice Stephen G. Breyer, plans to put into effect tomorrow a national do-not-call list that is designed to shield homes from telephone sales pitches.
The operation of that list is expected to block 40 percent to 60 percent of the telemarketers solicitations that reach residential telephones. Some 50 million numbers are on the do-not-call list, making it one of the government's most popular programs.
After a week of often confusing court activity, Breyer's brief order turning down without comment a request to block the list's operation seemed to clarify the situation for the time being.
The ban confronts telemarketers with the threat of heavy fines if they make calls to numbers on the national list.
Even before Breyer acted, some major telemarketers had decided to respect the listed numbers while the legal status remained at issue in the courts.
The Direct Marketing Association, a trade group of telemarketers, said many of its largest members would not call those numbers.
That list was developed by the Federal Trade Commission, but the FTC is currently blocked by two court orders from putting it into effect. The action by Breyer, however, allows another agency -- the Federal Communications Commission -- to stand in for the FTC and begin enforcing the do-not-call mandate.
The FCC, which regulates telephone service, has no list of its own, but it has written rules that will enforce the one amassed by its sister agency, which regulates unfair marketing tactics.
Michael K. Powell, FCC chairman, noted that his agency could move forward because it was not affected by the court orders keeping the FTC from implementing the registry.
The commission intends to continue to administer and enforce its rules to the fullest extent possible as court cases move forward, Powell said in a statement.
President Bush, a strong supporter of the do-not-call program, signed into law yesterday a bill that removed any doubt that the FTC had the statutory authority to set up the registry -- a measure that overturned one of last week's rulings against the FTC enforcing the list.
The do-not-call registry, the president said at a bill-signing ceremony at the White House, is a practical solution to address a growing concern.
While many good people work in the telemarketing industry, he said, the public is understandably losing patience with these unwanted phone calls, unwanted intrusions. And given a choice, Americans prefer not to receive random sales pitches at all hours of the day. And the American people should be free to restrict these calls.
Among those attending the White House ceremony was Representative Edward J. Markey, a Malden Democrat and a key lawmaker on telecommunications issues. Markey has said he was one of the first to add his phone number to the database.
I threw my cellphone number in, too, he told colleagues on the House floor last week.
The law Bush signed was passed swiftly and overwhelmingly by Congress in a single day to undo an Oklahoma federal judge's ruling that the FTC lacked the authority under federal law to establish the list.
However, Bush's signature on that measure did nothing to undo another federal judge's ruling in Denver last week that the FTC list is unconstitutional because it involves the government in choosing what messages may be conveyed by those who call home numbers on the list.
While commercial messages are not to be telephoned to homes, charity fund-raising calls and political polling or fund-raising solicitations are allowed. That is a form of government censorship of commercial messages, the Denver judge declared in a ruling that not only jeopardized the national list, but could threaten similar do-not-call mandates in Massachusetts and more than 30 other states.
The FCC rules also have been challenged in court, but there has been no decision on their validity.
Last week, the US Court of Appeals for the 10th Circuit, based in Denver, refused a request by telemarketers to block the list until it rules on the challenge. The appeals court is reviewing the FCC rules on an expedited basis.
After failing to stop the FCC at the appeals court, the telemarketers promptly moved on to the Supreme Court. Their unsuccessful request for a delay went to Breyer because he handles requests for emergency orders in cases from the 10th Circuit.
The telemarketers told Breyer in court papers that a telephone ringing with a commercial telemarketer on the line is no more invasive of home-dwellers' privacy than one ringing with a message about a charity or political activity.
BostonGlobe
© Copyright 2003 Globe Newspaper Company.
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