Back on Track, No-Call Start Set for Oct. 17

Another court ruling — and another reversal of fortune — means that the national no-call list will be up and running in days, federal agencies in charge of the list said yesterday.

Consumers can begin registering for the list again this morning, and telemarketers once again will be able to download the list Oct. 10, the Federal Trade Commission said. The announcement followed a 10th Circuit Court of Appeals ruling allowing the government to launch the no-call list while it decided whether the list violates free speech.

On Oct. 17, after a seven-day grace period, the FTC and Federal Communications Commission will jointly begin enforcing the no-call rules. However, telemarketers who already have the list are obligated to comply immediately.

The no-call list had been scheduled to take effect Oct. 1. The FCC has been taking complaints from consumers since then. But a lower court ruling blocked the FTC from sending a copy of the list to the FCC for enforcement purposes.

At a news conference in Washington, FTC chairman Timothy Muris declared a “major victory for Americans” and said the media coverage generated by the running battle over the list in the past several weeks will add to its success.

“The end result of this is that, because of all this publicity, there will be millions more people that register their phone numbers,” Muris said.

The no-call list's status has been in doubt since Sept. 23, when a federal judge in Oklahoma City ruled that the FTC lacked legislative authority to launch the list. Congress rapidly passed legislation granting that authority, but Judge Edward W. Nottingham of U.S. District Court in Denver declared the list unconstitutional hours later and again threw the future of the list into doubt.

After receiving a warning from Nottingham, the FTC took down the Web site that telemarketers used to download the list and, as of the start of this week, also cut off consumer registration. But the FTC asked for a suspension of Nottingham's ruling while it appealed, and late on Oct. 7 the appeals court granted the FTC's request.

In its ruling, the three-judge panel of the appeals court found that the FTC was likely to succeed in getting Nottingham's ruling overturned. The panel said it found evidence that the no-call list could legitimately discriminate between commercial solicitation and the exempted charity and political calls, which had been the basis of Nottingham's objection.

“We find it relevant that the national do-not-call list is of an opt-in nature, which provides an element of private choice and thus weighs in favor of a reasonable fit,” the appeals panel wrote. “The list is not invoked until the homeowner makes a private decision to invoke it.”

The appeals court ruling did not come as a surprise, said Bob Corn-Revere, lead attorney for the American Teleservices Association in the case. Earlier, the same court refused to delay enforcement of the list while it considered the ATA's separate appeal of the FCC's no-call rules.

However, it is not uncommon for an appeals court to stay a lower court's ruling, nor is that indicative of what the appeals court will decide in the end, Corn-Revere said.

In a statement, ATA executive director Tim Searcy said he was pleased that the appeals court had called for an expedited hearing schedule, which makes a speedier resolution of the case more likely. Both sides are set to submit written briefs to the court over the next month and convene for an oral hearing before the appeals court Nov. 10 in Tulsa, OK.

“The ATA has encouraged its members to comply with the FCC during this hearing and now asks its members to comply with both agencies while the courts go about their business,” Searcy said.

If the appeals court gives its final decision soon enough, the case could be appealed to the Supreme Court in time for it to deliver a final decision on the issue in its current term, Corn-Revere said. The Supreme Court typically would hold a hearing and issue a decision by the end of June.

However, FCC chairman Michael Powell, who joined Muris at the news conference, warned telemarketers to get used to having a no-call list around.

“If I were them, I would start getting worried about having to comply with the list for a very long time if the merits of the case go in the government's favor, which I believe they are likely to do,” Powell said.

The no-call list will be the FTC's top enforcement priority, Muris said. The FCC has received about 2,000 complaints since Oct. 1 and has opened some investigations already, Powell said.

Consumers and industry sources have reported a decrease in telemarketing calls, Muris said. In a statement, the Direct Marketing Association said it conducted a survey of consumers Oct. 3-5 and found that 43 percent had not received a telemarketing call from Oct. 1 to 5. About 72 percent of those surveyed said the list was “effective” or “very effective” in reducing calls.

About 400 organizations have downloaded the full list, more than 5,200 have downloaded parts of it and about 13,000 organizations are registered to the FTC no-call program, Muris said. However, many of those who downloaded parts of the list may be small telemarketers that don't call into every area code, and it's unlikely many telemarketers have been prevented from accessing the list due to court rulings, he said.

Most telemarketers are legitimate businesses and will comply with the list, he said.

“We have a few telemarketers that are more suspicious than the others,” Muris said. “We're already thinking of how to deal with them.”

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