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Regulation and Compliance > Federal Regulation

Where Is Do-Not-Call This Week?

By Steven Brostoff

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Washington

The Federal Communication Commissions do-not-call rules remain in effect and are being enforced to the greatest extent possible, says FCC Chairman Michael K. Powell.

However, he acknowledges, the legal controversy surrounding the do-not-call issue may hamper the FCCs enforcement efforts.

The series of often conflicting court decisions involving the do-not-call issue has created a tremendous amount of confusion, but as of press time the situation is as follows:

Powell says in a statement that the FCCs rules, which specifically apply to the insurance industry, have not been disturbed by recent court cases involving the do-not-call rules issued by the Federal Trade Commission.

He notes that the 10th Circuit Court of Appeals, which will be hearing arguments over whether the do-not-call rules are constitutional, refused to block the FCCs rules from taking effect.

“The Commission intends to continue to administer and enforce its rules to the fullest extent possible as the litigation proceeds,” Powell says.

However, in a subsequent statement to the Senate Commerce Committee, he acknowledges that as a practical matter, legal challenges to the Federal Trade Commissions rules affect the FCCs enforcement efforts because the two agencies are working in partnership.

Most directly, he says, to the extent that federal court rulings prevent the FCC from gaining access to the FTCs database, the FCCs enforcement efforts will be hampered.

While the FCC is working hard to clarify the legal landscape, Powell says, the FCC will enforce its do-not-call rules against telemarketers to the greatest extent possible.

“I believe our rules will withstand constitutional challenge,” Powell adds.

“In the end, I am simply unwilling to accept the notion that the First Amendment unavoidably bars the American people from deciding who calls them in the privacy of their own homes,” he says.

The FTCs do-not-call rules have had several legal ups and downs over the past several days.

First, a federal district court in Oklahoma ruled to overturn the FTCs rules, arguing that the agency did not have the authority to promulgate the rules.

Congress quickly responded by passing legislation specifically granting the FTC the required authority, which President Bush signed last week.

However, a federal district court in Colorado then ruled that the FTCs rules are an unconstitutional restriction on free speech, because they apply only to certain parties, in this case to businesses but not to charities.

The court also threatened the FTC with contempt of court if it allows the FCC to have access to its database.

The 10th Circuit Court of Appeals in Denver will hear the FTCs appeal of the District Courts decision.

However, when the direct marketing groups challenging the do-not-call requirements asked the 10th Circuit to block the FCCs rules as well as the FTCs, the court refused to do so, stating there is a strong public interest in leaving the FCCs rules in place.

Reproduced from National Underwriter Life & Health/Financial Services Edition, October 3, 2003. Copyright 2003 by The National Underwriter Company in the serial publication. All rights reserved.Copyright in this article as an independent work may be held by the author.

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