‘Do-Not-Call’ Gets Hearing

A U.S. appeals court indicated Monday that it might uphold Federal Trade Commission restrictions on telemarketers, a month after allowing the government to start enforcing the “do-not-call” program.

The 10th U.S. Circuit Court of Appeals in Tulsa, Okla., is considering the FTC’s appeal of a lower-court decision striking down limits on unwanted telephone solicitations. The same appellate panel said last month that the government probably would win its appeal.

“I’m having trouble with your argument,” U.S. Circuit Judge David M. Ebel told the telemarketers’ attorney, Robert Corn-Revere, who argued that the ban on sales calls to those on the list restricted individual choice because charitable and political calls were permitted. Ebel said signing up was an individual choice. “It’s totally your discretion,” he said.

At issue is whether the privacy rights of Americans seeking to duck unwanted phone solicitations outweigh the free-speech rights of an industry generating more than $100 billion in annual sales. At least 54 million Americans have signed up for the do-not-call registry. Telemarketers who phone listed numbers can be fined as much as $11,000 per violation.

Monday’s hearing focused on where the government may draw the line in restricting commercial speech. Courts generally have provided less protection to commercial speech than to other types of speech, including political speech. The do-not-call restrictions on telemarketers don’t apply to solicitors for charities or political campaigns.

The judges asked government lawyers whether individuals’ privacy rights trumped the free-speech rights of telemarketers.

“Yes,” FTC attorney Lawrence DeMille-Wegman said. “To the extent that we can sufficiently advance the government’s interests, yes.”

The FTC and the Federal Communications Commission have reported tens of thousands of complaints since they started enforcing the law last month, after the 10th Circuit Court stayed U.S. District Judge Edward Nottingham’s finding that the law violated the free-speech rights of commercial telemarketers.