ATA Plans No-Call Appeal; DMA Rests Fight

The two trade associations representing the telemarketing industry are again split on the national no-call list, with one intent on fighting to the end and the other prepared to accept the list and work for changes.

The American Teleservices Association said last week that it would ask the U.S. Supreme Court to overturn the 10th Circuit Court of Appeals decision upholding the constitutionality of the no-call registry. The Direct Marketing Association then announced that it would end its legal pursuit.

If the Supreme Court agrees to hear the case, a final ruling likely would be made by mid-2005. The ATA, which met in Washington last week for its annual legislative conference, will face off with the Federal Trade Commission and Federal Communications Commission in an appeal that could cost the association $500,000.

The ATA's board of directors made the decision to appeal over the past few weeks, executive director Tim 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.

In explaining its decision to drop its challenge to the no-call list, the DMA cited consumer wishes to be left alone and said it would continue to work with the FCC and FTC to resolve issues with the registry.

“The telephone marketing industry remains committed to respecting the wishes of those who have placed their household telephone numbers on the do-not-call list,” DMA president/CEO H. Robert Wientzen said. “Consumers must come first. We will listen to consumers.”

The ATA does not expect the DMA's decision to affect its case.

“It won't make a material difference,” Searcy said. “The strength of our case has always been the First Amendment.”

The ATA knows of the potential for consumer backlash, 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. However, 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” 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 hear the appeal likely would come before its next term begins in the fall, and if it 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 his comments to ATA members gathered at the conference 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.

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