ATA Plans Appeal of No-Call Ruling to Supreme Court

WASHINGTON — The American Teleservices Association will ask the U.S. Supreme Court to overturn the 10th Circuit Court of Appeals decision upholding the constitutionality of the national no-call list, ATA executive director Tim Searcy told DM News exclusively yesterday.

If the Supreme Court agrees to hear the case, a final ruling on the national no-call list likely would be made by mid-2005. The ATA, which is meeting here at the association's annual legislative conference, will have a press conference to announce its decision today.

In an appeal, the ATA would take on the Federal Trade Commission and Federal Communications Commission in the nation's highest court. The ATA estimated that pursuing the case to a final Supreme Court decision would cost $500,000.

The ATA's board of directors made the decision to appeal over the past few weeks, Searcy said. The board is convinced that the 10th Circuit decision cannot be allowed to stand unchallenged and that there is a good chance for a successful appeal because problems exist with the appeals court's reasoning that can be called into question.

The ATA knows of the potential for consumer backlash from the appeal, having been through a storm of public criticism after its district court victories last fall against the no-call list, said Searcy, who experienced the brunt of it as the ATA's main public representative. The association must devise an alternative to the national no-call list that will benefit consumers yet be acceptable to the industry.

“If we win, it will not be popular,” he said. “We have to figure out a way with Congress to provide an appropriate amount of relief and control.”

For the Supreme Court to consider the appeal, the ATA must file a request for review known as a “writ of certiorari” with the court by mid-May, said Bob Corn-Revere, an attorney with law firm Davis Wright Tremaine who is heading the ATA's case.

A decision by the court on whether to consider the appeal likely would come before its next term begins in the fall, and if the court agrees to review the case a ruling would occur by at least June 2005.

The Supreme Court reviews only 90 to 100 cases yearly, so it is unusual for an appeal to be accepted, Corn-Revere said. However, the no-call case likely would be heard because of extensive public interest and conflicts between the circuit courts on no-call issues.

“This is precisely the kind of matter that the court would weigh in on,” he said.

Corn-Revere made the comments to ATA members gathered at the conference yesterday before the official announcement of the appeal. He criticized the 10th Circuit Court's 51-page opinion, released Feb. 17, in favor of the no-call list, calling it “breathtakingly superficial” and saying the 10th Circuit simply ignored substantial arguments advanced by the ATA rather than address them in the ruling.

“We were disappointed with the result,” he said. “More than that, we were rather underwhelmed by the [10th Circuit] opinion itself.”

In several cases, the Circuit Court accepted FCC and FTC arguments at face value without challenge, he said. For example, the court accepted the government's argument that company-specific no-call rules in place since 1992 failed consumers because there are too many telemarketing calls, when the court in its own opinion admitted it had no idea how many calls consumers receive, he said.

On the state level, legislatures remain active on telemarketing issues despite the existence of a national no-call list, Mitch Roth, ATA legal counsel, told members at the conference. Forty states have no-call laws, including 15 that enacted them after the launch of the national list.

States also are considering narrowing or eliminating exemptions for business-to-business calls, nonprofit and political calls and existing business relationship calls, Roth said. These proposals have yet to gain much traction but still are being kicked around state legislatures.

With international business outsourcing becoming a hot-button issue in the 2004 presidential race, state legislatures also are looking at ways to limit telemarketers who shift call centers overseas, Roth said. At least nine states have proposed legislation requiring telemarketers to state the location of the call center for inbound and outbound calls.

In some cases, the proposals would require telemarketers to shift a call to a U.S.-based call center at the consumer's request, he said. Georgia, North Carolina, South Carolina and Vermont have considered legislation that would force teleservices providers to use U.S. call centers on government contracts.

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