FTC Appeals District Court Ruling That Do No Call Registry Violates 1st Amendment

September 26, 2003. The Federal Trade Commission (FTC) filed a Notice of Appeal [3 pages in PDF] with the U.S. District Court (DColo) in Mainstream Marketing v. FTC. On September 25, the District Court issued its Memorandum Opinion and Order [34 pages in PDF] holding that the FTC's do not call registry violates the First Amendment free speech rights of telemarketers.

The FTC also filed a Motion for an Emergency Stay Pending Appeal [3 pages in PDF] and a Memorandum of Points and Authorities in Support of It's Motion for an Emergency Stay Pending Appeal [9 pages in PDF].

The FTC requested that the District Court expedite its consideration of this motion for stay, to enable the Court of Appeals "to give the Tenth Circuit adequate time, before October 1, to consider the matter."

The District Court's decision was based upon its analysis that the FTC's do not call registry is content based regulation that covers commercial, but not non-profit, solicitations. The FTC asserts that the District Court "obliterates the constitutional distinction between fully-protected speech and commercial speech."

The FTC argued that "There will be irreparable harm if a stay is not granted. Already, consumers have registered more than 50 million telephone numbers onto the registry. By doing this, millions of consumers have indicated that they find unwanted telemarketing calls to be abusive and they want them stopped. ... The Rule's registry provisions that protect consumers were scheduled to take effect on October 1, 2003. If this Court’s Order is not stayed, these consumers will continue, after that date, to receive abusive telemarketing calls. There is no remedy for the countless intrusions on privacy such abusive calls will impose on these consumers during the time an appeal in this case is pending."

On September 26, Rep. Billy Tauzin (R-LA) and Rep. John Dingell (D-MI), the Chairman and ranking Democrat on the House Commerce Committee, released a joint release regarding the Colorado ruling.

They wrote that "We are disappointed to learn that a second federal court in Colorado has agreed with the telemarketing industry and ruled against the do-not-call registry. The court found the registry to be an unconstitutional regulation of speech. We disagree."

Rep. Tauzin (at right) and Rep. Dingell added that "The do-not-call registry does not restrict a salesman's right to speak, rather it empowers American consumers who choose not to listen. Putting your name on the do-not-call list is no different than hanging a 'no solicitation' sign on your front door. This issue is not about speech, it is about American citizens deciding who they let into the privacy of their homes. Rest assured, we will examine the judge's opinion closely and will take whatever steps we can to ensure that the do-not-call registry is open for business as scheduled."

Similarly, Federal Communications Commission (FCC) Chairman Michael Powell stated in a release that the District Court decision is "fundamentally flawed. We strongly believe the Do Not Call list withstands constitutional scrutiny."

This case is Mainstream Marketing Service, TMG Marketing Inc., and American Teleservices Association v. Federal Trade Commission, et al., D.C. No. 03-N-0184, U.S. District Court for the District of Colorado, Judge Edward Nottingham presiding. Lawrence DeMille-Wagman signed these pleading for the FTC. Robert Corn-Revere of the law firm of Davis Wright Tremaine represents the telemarketers.

Other Do Not Call Registry Related Proceedings

In addition to Mainstream Marketing Services v. FCC (D.C. Colorado) and CompTel v. FCC (U.S.C.A., D.C.), there are several other proceeding related to the do not call registry, telemarketing practices, and consumer complaints about telemarketers.

MMS v. FCC (10thCir). On July 25, 2003, Mainstream Marketing Services (MMS) filed a petition for review in the U.S. Court of Appeals (10thCir).

On September 26, the Tenth Circuit denied MMS's request for a stay of the FCC's do not call order, holding that it had failed to show a substantial likelihood of success on the merits.

This is Mainstream Marketing Services, Inc., TMG Marketing, and American Teleservices Association, Appeals Court No. 03-9571. These telemarketers are represented by Robert Corn-Revere.

U.S. Security v. FTC (U.S.D.C., W.D. Okla). U.S. Security, and other telemarketing related entities, filed a civil complaint in the U.S. District Court (WDOkla) against the FTC. On September 24, the District Court issued its Order [19 page PDF scan] holding that the FTC's rule creating a do not call registry exceeds the statutory authority of the FTC.

This was a matter of statutory interpretation, so the Congress was able to render the District Court's order moot by amending the statute to make clear that the FTC has authority to implement a do not call registry. See, HR 3161, which was passed by both the House and Senate on September 25.

See also, stories titled "Oklahoma Court Rules FTC Do Not Call Registry Invalid" in TLJ Daily E-Mail Alert No. 746, September 25, 2003, and "Congress Passes Bill to Authorize Do Not Call Registry" in TLJ Daily E-Mail Alert No. 747, September 26, 2003.

This case is U.S. Security, et al. v. Federal Trade Commission, D.C. No. CIV-03-122-W, U.S. District Court for the Western District of Oklahoma, Judge Lee West presiding.

ATA v. FCC (U.S.D.C., D.C.). The American Teleservices Association (ATA) has also filed a complaint in the U.S. District Court (DC) against the Federal Communications Commission (FCC) alleging violation of the Freedom of Information Act (FOIA), codified at 5 U.S.C. § 552, in connection with the ATA's efforts to obtain from the FCC personally identifying information about the over 10,000 consumers who have complained to the FCC about telemarketing practices.

See, story titled "Telemarketers Sue FCC To Get Names, Addresses, and Phone Numbers of Consumers Who Complained to FCC" in TLJ Daily E-Mail Alert No. 741, September 17, 2003.

This case is American Teleservices Association v. FCC, D.C. No. 03-CV-1848, Judge Richard Leon presiding. The complaint was signed by Robert Corn-Revere. It was filed on September 4, 2003.