Do-Not-Call List Is On Again--For Now - InformationWeek

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Do-Not-Call List Is On Again--For Now

The FCC has stepped in to enforce the program during a battle that has involved two federal judges, an appeals court, both houses of Congress, the White House, and the Supreme Court.

WASHINGTON (AP) -- The on-again, off-again national do-not-call list is moving ahead for now with a second federal agency stepping in to enforce the program so people pestered by telemarketers can get some relief beginning Wednesday.

Even before the Federal Communications Commission intervened, many of the largest telemarketers said they will not call the 50 million phone numbers on the list, though the program is mired in legal confusion.

In less than a week, the bewildering battle between the government and telemarketers has involved two federal judges, an appeals court, both houses of Congress, the White House, the Supreme Court and two federal agencies.

With the Federal Trade Commission blocked from enforcing the registry by a judge's ruling, FCC chairman Michael Powell said Monday his agency would take over. Telemarketers who call listed numbers could face FCC fines of up to $120,000.

"What you've got is virtually everyone in federal government here working to leave no avenue unexhausted to make sure the list works as fully as legally possible," Powell said Monday, a day before he was to testify at a Senate hearing on the do-not-call list.

Late Monday, the judge that blocked the FTC warned that the agency could face more legal action for using the FCC "to skirt the order."

U.S. District Judge Edward W. Nottingham in Denver denied an FTC request to suspend his decision while the agency appeals. In his ruling, he said he clearly prohibited the FTC from operating the registry and the law prevents any indirect actions to get around that.

The FTC is encouraging people to keep signing up for the list. Consumers can register and file complaints about telemarketer violations at www.donotcall.gov or by calling 1-888-382-1222.

FCC officials said complaints will be forwarded to their agency for enforcement. Consumers can also file complaints directly with the FCC by calling 1-888-225-5322.

The free service was originally intended to block about 80 percent of telemarketer calls. Exemptions included calls from charities, pollsters, and on behalf of politicians.

The do-not-call list works by requiring telemarketers to pay for a copy of the list so they can know who to avoid calling. Many telemarketers have the list, but some do not and cannot obtain it since the FTC shut down that aspect of the program on Sunday in response to the court rulings.

The FCC can only penalize telemarketers who have gotten the list, meaning that some businesses may keep calling consumers without fear of reprisals.

"It's a confusing situation," FTC chairman Timothy Muris said. "Telemarketers that don't have the list have a competitive advantage."

While many members of the Direct Marketing Association, the largest telemarketer association, have agreed to comply with the list, some worry they might be penalized whether they have the list or not.

Telemarketers without the list are in a Catch-22 situation because they can't get it and are afraid to make calls because they might be fined for calling listed numbers, said Jerry Cerasale, a senior vice president with the association.

A ruling last week by U.S. District Judge Lee R. West in Oklahoma City that the FTC lacked authority to run the registry triggered a whirlwind of activity in Washington.

That prompted Republicans and Democrats in Congress last week to quickly pass a bill, which President Bush signed Monday, giving the FTC explicit authority to set up and operate the do-not-call list. But it was a distinction made moot by Nottingham's order, which came down around the time Congress acted on Thursday.

In that order, Nottingham ruled the do-not-call list unconstitutional on free-speech grounds because it applied to calls from businesses but not charities. He blocked the FTC from enforcing the list.

Another court decision left the FCC free to act. A three-judge panel of the Denver-based 10th U.S. Circuit Court of Appeals on Friday denied a request from telemarketers to block the FCC's role in the registry.

On Monday, Supreme Court Justice Stephen Breyer refused to block that decision, but telemarketers could renew their request with another justice.

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