FTC Panel Predicts DNC Court Victory

A panel gathered for a symposium marking the Federal Trade Commission's 90th anniversary expressed confidence yesterday that the national no-call list would survive a Supreme Court challenge filed by the industry.

Meeting in Washington, the panel consisted of former FTC staffers whose experience in consumer protection issues reached back to the 1970s. They contrasted the FTC's no-call program with two previous — and similarly controversial — attempts by the FTC to start consumer protection programs.

The two other FTC projects were the agency's challenge to the tobacco industry in the mid-1960s and its attempt to control television advertising aimed at children in the late 1970s. These programs had differing results, panelists said.

The FTC took on a powerful tobacco industry and succeeded in creating rules requiring warning labels for cigarettes and restrictions on broadcast cigarette advertising despite initial resistance in Congress. However, a proposal to limit and even ban television advertising aimed at children — the “Kid-Vid Rule” — drew fierce industry opposition, caused public dismay and eventually was withdrawn.

Panelists described the no-call list as an unqualified success. Teresa Schwartz, former deputy director of the FTC Bureau of Consumer Protection, predicted the list would withstand a Supreme Court review and said that it “could be the most important” FTC program of her time.

The no-call list differs from the other two FTC consumer protection efforts studied by the panel, said William MacLeod, former director of the FTC Bureau of Consumer Protection. Instead of a government ban on speech, the list lets consumers take the initiative to block calls.

“It's we consumers who decide who can call us,” he said. “That will make it a very hard rule to overcome.”

In February, the U.S. 10th Circuit Court of Appeals affirmed the constitutionality of the list. In October 2003, just as the list was about to become law, a lower federal court had ruled against the list on the grounds that it violated free-speech protections.

In May, the American Teleservices Association asked the U.S. Supreme Court to review the appeals court decision. The Supreme Court has yet to decide whether it will take the case.

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