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'Do-Not-Call' Effort Becomes Convoluted

October 01, 2003|Jube Shiver Jr. | Times Staff Writer

WASHINGTON — If your phone doesn't ring off the hook tonight, you may or may not have government regulators to thank.

The on-again, off-again effort by the Federal Trade Commission to shield Americans from unwanted sales calls remained mired in a legal battle Tuesday, but the Federal Communications Commission vowed to begin at least a partial crackdown on such calls today.

FCC Chairman Michael K. Powell said his agency would start enforcing a "do-not-call" list of nearly 51 million phone numbers that two federal judges last week barred the FTC from enforcing.

Testifying before the Senate Commerce Committee, Powell said the FCC would fine some telemarketers who call the numbers in the FTC's registry as much as $11,000 per incident. Powell said people can file complaints by visiting the FCC's Web site at or calling (888) 225-5322.

Although the FTC was the lead agency in compiling the list, it shared enforcement with the FCC. Because the court decisions blocking the list named only the FTC, FCC lawyers believe the agency can press ahead.

But Powell's plan could bring the FCC in conflict with U.S. District Judge Edward W. Nottingham in Denver, who late Monday ordered the FTC not to share its list of numbers with anyone.

"The court assumes that the FTC is familiar with the substantial body of case law to the effect that a person enjoined cannot do indirectly through another what it is prohibited from doing directly," wrote Nottingham, who derailed the FTC's implementation of the list last week when he ruled that it violated the free-speech rights of telemarketers.

In any case, Powell's enforcement plan requires a fair amount of detective work to succeed.

Speaking to reporters, Powell said that because the FCC could not legally obtain the FTC's do-not-call list, it would instead ask telemarketers whether they had the list -- and then prosecute those that had the list and still called phone numbers on it.

For those companies, if they lie, they will be violating our rules," he said. If they tell the truth, he added, the FCC will prosecute them for violating the do-not-call list rules. "One thing you don't want to do is lie to the government," he said.

Powell acknowledged that the FCC's approach would affect only telemarketing firms that had requested the list from the FTC. Other firms could continue to call without restrictions.

About 400 companies -- including most of the nation's largest telemarketers such as banks and airlines -- have accessed the do-not-call list since the FTC made it available in September, said FTC Chairman Timothy J. Muris. He predicted a significant reduction in sales calls, "assuming telemarketers comply."

But telemarketers seemed intent on continuing their fight.

"The court cases must go on," Jerry Cerasale, senior vice president of the Direct Marketing Assn. trade group, told committee members Tuesday. He said the legal effort was needed to settle "important constitutional issues" of whether telemarketing is protected by free-speech rights. In the meantime, the organization has asked its members to honor the wishes of those who have put their numbers on the registry.

Some legal experts questioned whether the FCC was on solid legal ground enforcing the do-not-call list.

"The 1st Amendment applies to the FCC as well as the FTC," said Eugene Volok, a 1st Amendment expert who teaches at UCLA law school. "The logic of [Nottingham's] opinion would apply just as much to the FCC as the FTC."

But other legal experts said the FCC, under its existing authority, could enforce the do-not-call list. Government officials expressed optimism that the program eventually would be upheld on appeal.

In support of the federal effort, California Atty. Gen. Bill Lockyer and attorneys general in 44 other states Tuesday filed a brief in U.S. appeals court supporting the FTC's authority to enforce the registry.

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