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Bad Calls on Phone Registry

September 30, 2003

Fifty million Americans may not agree on much, but they are adamant in wanting to get rid of badgering telephone sales pitches. They ought to get at least this.

Fifty million is the number of Americans who signed on to the Federal Trade Commission's "do not call" registry. They expected that beginning Wednesday, the phone would not ring during dinner with yet more pre-approved credit card offers and "free" vacations, a deluge that can provoke otherwise polite folks to scream into the receiver. But after a roller-coaster week of legislation and court rulings, the registry's future is still clouded. Michael Powell, chairman of the Federal Communications Commission, announced Monday that his agency would enforce the list until the FTC is able to do so. The telemarketers, unwilling to concede, may appeal to the U.S. Supreme Court to block Powell.

Also on Monday, President Bush signed a bill to ratify the Federal Trade Commission's authority to set up the registry after an Oklahoma federal judge cast doubt on that authority. A second, flawed decision last week succeeded in blocking the registry from taking effect and posed a more serious challenge. U.S. District Judge Edward W. Nottingham acknowledged how much people despise sales calls. He also acknowledged the FTC's registry for what it is, a political compromise designed to stop commercial firms from calling, but not charitable or political groups -- including the Democratic and Republican parties.

Nottingham talked about Supreme Court precedents limiting government's ability to decide what we read or hear: Cities that want to cut down on street trash can't bar some newspapers and not others from news racks. The U.S. Postal Service can't decide which ads letter carriers will put in your mailbox, though people can refuse senders' mail.

Nottingham is right to say that the government can't decide for individuals what information they should receive. But the Denver judge is wrong to seize on the registry's distinction between commercial and nonprofit callers as censorship, or, as the telemarketers huffed, "regulatory imperialism." The government forces no one to put their phone number on the FTC's list. Don't mind the phone calls? Don't sign up.

The judge recognized that "the government's interest in protecting the well-being, tranquillity and privacy of the home is of the highest order in a free and civilized society." That's where he should have stopped. If salesmen were to pound on windows and yell the virtues of their products, the courts would call it trespassing. Surely an appeals court will agree that the 1st Amendment doesn't give cable companies, cellphone providers and the rest the right to endlessly disturb Americans' home lives by way of that necessary appliance, the telephone.

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