No-Call Telephone Registry Is Upheld

A federal appeals court on Tuesday endorsed the government’s “do-not-call” list, rejecting telemarketers’ claims that the popular program violates their free-speech rights.

“We hold that the do-not-call registry is a valid commercial speech regulation,” wrote a three-judge panel of the U.S. 10th Circuit Court of Appeals in Denver, overturning a lower court ruling that the list was unconstitutional.

The decision cleared the way for the government to more aggressively enforce the registry, which includes 56 million phone numbers that are off-limits to telemarketers.

The registry’s legality was questioned by two lower court judges last fall. But the list was allowed to take effect during the appeals process as people signed up by the millions. In a nod to the popular interest, the nation’s largest direct marketing group told its 5,000 members not to call numbers on the list, regardless of its legal fate.

The head of the New York-based Direct Marketing Assn. said Tuesday that the organization was weighing its legal options, noting that about 2 million of the industry’s 6.5 million workers could lose their jobs if the appeals court ruling stands.

“The impact on our industry has been severe -- not catastrophic, but severe,” marketing association President Bob Winston said.

Federal officials said they were pleased that the appeals court upheld rules that allow regulators to fine telemarketers as much as $11,000 per offense if they call numbers on the registry.

“The 10th Circuit’s ruling represents a major victory for American consumers,” said Timothy Muris, chairman of the Federal Trade Commission, which shares registry enforcement responsibilities with the Federal Communications Commission. “We are pleased that this popular program, like America’s dinner hour, will not be interrupted.”

Said FCC Chairman Michael K. Powell: “This decision is a triumph for American consumers.”

Tuesday’s decision overturned a ruling by U.S. District Judge Edward Nottingham, who held in September that the registry violated free-speech rights because it barred businesses -- but not nonprofit groups -- from calling blocked numbers.

Because Nottingham’s ruling prevented the FTC from enforcing the list, the FCC took over primary responsibility during the appeal.

A nearly unanimous Congress solved another legal objection in October when it pushed through emergency legislation giving the FTC explicit power to establish the registry. U.S. District Judge Lee R. West in Oklahoma City had ruled that the FTC exceeded its authority in setting up the registry.

In the end, the appeals court gave the federal government good marks for crafting telemarketing rules that didn’t run afoul of free-speech protections, saying the government was on solid ground drawing a distinction between charitable or political calls and commercial solicitations.

“As a general rule, the 1st Amendment does not require that the government regulate all aspects of a problem before it can make progress on any front,” the appeals court said.

The court added that none of the telemarketers’ proposed alternatives, such as using caller ID to block unwanted sales pitches, “would serve the government’s interests as effectively” as the list. The registry, the court ruled, “offers consumers a tool with which they can protect their homes against intrusions that Congress has determined to be particularly invasive.”

The registry stems from an effort to crack down on telemarketers that began in 1991, when Congress passed the Telephone Consumer Protection Act.

The FTC said last month that consumers had registered more than 55 million phone numbers through 2003.