Tuesday, 30 September 2003
KNIGHT RIDDER NEWSPAPERS
WASHINGTON - In an effort to keep the national do-not-call registry afloat Monday, President Bush signed corrective legislation into law and his Federal Communications Commission decided to help enforce the prohibition on sales calls to the 50 million Americans on the list.
But their work is dependent on how successful the government will be in arguing that the popular ban on unwanted sales calls does not violate telemarketers' free speech protections.
Last week, U.S. District Court Judge Edward Nottingham said the law is unconstitutional because it permits solicitations from charities, political parties or other nonprofit organizations, but bans them for corporations.
Nottingham's decision puts the list at the crux of a constitutional debate that could wind up before the Supreme Court - a clash between free speech and the right to privacy, and a discussion about where to draw the line between political or artistic speech and commercial speech, which generally enjoys less First Amendment protection.
In Phoenix, state officials are prepared to begin enforcing Arizona's own telemarketing restrictions no matter what happens at the federal level.
"We have a valid law on the books," said Assistant Attorney General Karen Treon. She said the fights playing out in two federal courts should have only a peripheral effect on that law.
Battle could affect state law
Treon acknowledged, however, those legal battles could change exactly how Arizona will enforce its own law - particularly since legislators here crafted it to dovetail with the federal do-not-call list.
The federal law and regulations cover only interstate calls. To fill that gap, state lawmakers crafted a law that requires Arizona-based operations that telemarket to Arizonans to honor the wishes of those who sign up on the federal do not call list.
Companies can face fines up to $1,000 for violations.
Treon said the two court rulings deal only with questions of the validity of the federal law.
"I think (Arizona) telemarketers don't have a problem getting the list," she said. And since there are no legal challenges to Arizona's law, Treon said, the Attorney General's Office intends to make Arizona companies comply - and to go after those who do not.
The federal constitutional question looms large over the federal government's ability to have any agency enforce the restrictions.
"Every time you have one constitutional right facing off against another, you have to use a seesaw balancing test," said Warren Dennis, a partner in the Prosskauer Rose law firm who has frequently handled cases involving the Federal Trade Commission, which created the do-not-call list. "And it's not a fixed line. It's always changing."
Bush said Monday that Americans were "losing patience" with unwanted phone calls and that his administration was acting to support the people who signed up for the do-not-call list.
"The do-not-call registry is still being challenged in court," Bush said. "Yet, the conclusions of the American people and the legislative branch and the executive branch is beyond question."
Registry faces two legal tests
To pass constitutional mus-ter, the do-not-call list must clear two important legal tests.
First, the government must show that consumers' rights to privacy, an explicit constitutional right, outweigh telemarketers' rights to free speech.
In fact, in his ruling invalidating the law, Nottingham acknowledged the importance of personal privacy and the government's interest in protecting it. But he also found that the do-not-call list failed to clear a second hurdle: proving that the government had a compelling interest to treat purveyors of one message differently from another.
Nottingham called the list a "content-based" limitation on what calls consumers may get.
* Howard Fischer of Capitol Media Services contributed to this story