Another late ruling by a federal judge in Denver may impede the Federal Communications Commission's ability to enforce the national no-call list, FCC chairman Michael Powell told lawmakers yesterday.
In a decision issued late Sept. 29, U.S. District Court Judge Edward W. Nottingham denied the Federal Trade Commission's request to postpone his ruling that the no-call list violated First Amendment free speech rights. He also warned the FTC not to try to get around his ruling by providing the no-call list to the FCC to begin enforcing the list on Oct. 1 as planned.
“The court assumes that the FTC is familiar with the substantial body of case law to the effect that it cannot do indirectly through another what it is prohibited from doing directly,” Nottingham wrote. “The FTC has appealed this court's ruling, as is its legal right, and the court will not assume, on the basis of news reports, that it will risk collateral proceedings by also trying to skirt the Order.”
In response to Nottingham's decision, the FTC said it filed an emergency request with the 10th Circuit Court of Appeals to suspend the ruling. That appeals court had earlier ruled that the FCC could enforce the no-call list while issues about the list's legality are resolved.
Speaking before the Senate Committee on Commerce, Science and Transportation, Powell said challenges to the FTC affect the FCC's ability to enforce its own no-call rules. Previously, the FCC had said that it was unaffected by Nottingham's ruling.
“The Colorado district court's order last night has raised questions about the FCC's ability to enforce the list,” Powell said. “Most directly, to the extent the court's ruling prevents the FCC from accessing the FTC's database, our enforcement efforts may be hampered.”
However, the FCC did not change its earlier promise to begin enforcing the rule starting today. In statements to reporters after the hearing, Powell said that the FCC would take complaints from consumers for list violations and that the list was not “shut down,” the Associated Press reported.
An FCC spokeswoman confirmed the agency would take consumer complaints but said it was still determining the extent to which it could legally enforce the list.
In its request to the 10th Circuit Court of Appeals, the FTC stated that it would cease accepting consumer registration to the no-call list. FTC representatives did not return phone calls yesterday.
The Direct Marketing Association, which has told its members to voluntarily use the no-call list, told the committee it was concerned about telemarketers getting access to the list because the FTC has shut down the Web site telemarketers used to download it. DMA vice president of government affairs Jerry Cerasale testified that the FTC has prohibited the association from sharing the list with its members for the purpose of voluntary compliance.
States also may be affected because the Telephone Consumer Protection Act prohibits them from enforcing their own state no-call lists unless they incorporate the phone numbers of their residents who have registered for the national list, Muris told the committee. Nottingham's decision is unclear on whether states can access the no-call list, and thus it calls enforcement of state no-call laws into question, Muris said.
The American Teleservices Association, whose challenge to the national list resulted in Nottingham's ruling, also testified at the hearing. An ATA spokesman said the association's only comment was that it was pleased with Nottingham's ruling.
Nottingham's new ruling was the latest turnaround in the weeklong no-call battle between the telemarketing industry and regulators that has been marked by near-daily reversals of fortune. It began Sept. 23 when Judge Lee West of the U.S. District Court in Oklahoma City ruled that the FTC lacked the authority to implement the list.
Congress responded Sept. 25, working at a “land-speed record” pace, as one congressman described it, to pass legislation in a single day to give the FTC the authority it needed to launch the list.
The ink was barely dry on the bill when Nottingham's constitutionality ruling was released. Then, late on Sept. 26, the 10th Circuit Court of Appeals ruled that the FCC could proceed with enforcement of the list while legal challenges were resolved.
On Sept. 29, the FCC announced it would enforce the list starting Oct. 1, and President Bush signed the authorizing legislation Congress had passed the previous week. Yet Nottingham's rejection of the FTC's request late in the day seemed to swing the conflict back to the telemarketing industry's favor, at least for now.
