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Federal Judge Declares Do-Not-Call List Unconstitutional

This came just hours after both houses of Congress passed legislation aimed at nullifying another court’s decision to halt the list’s enactment earlier in the week.

In the second ruling against the registry this week, U.S. District Judge Edward Nottingham ruled late Thursday that the new “do-not-call” list violates the First Amendment. On Tuesday a federal judge in Oklahoma City ruled the list had been improperly established by the Federal Trade Commission and not the Federal Communication Commission and proscribed by law.

The House voted 412-8 and the Senate 95-0 Thursday to remedy the situation, passing a bill authorizing the FTC to establish and maintain the registry.

President Bush also said he planned to sign the new law.

“The millions of people who have signed up for the list have the right to reduce unwanted telephone solicitations. I commend Congress for its rapid action to support the registry, and I look forward to signing this legislation ” he said in a statement.

But Thursday night’s decision could be more difficult for advocates of the list to overcome since the courts will need to address the constitutionality of the registry.

Nottingham blocked the list and criticized the government for banning companies from calling phone numbers listed in the registry, while exempting charities and other non-profits.

“The First Amendment prohibits the government from enacting laws, creating a preference for certain types of speech based on content, without asserting a valid interest … to justify its discrimination,” he said in a 33-page decision.

“The Federal Trade Commission has chosen to entangle itself too much in the consumers’ decision by manipulating consumer choice and favoring speech by charitable (organizations) over commercial speech,” he wrote.

Officials with the FTC were not available for immediate comment on Nottingham’s decision.

Thursday’s court move was the latest in three days of back-and-forth over the registry which some 50 million people have signed up for and was due to take effect Oct. 1.

Late Tuesday, U.S. District Judge Lee West ruled in favor of the Direct Marketing Association and four other plaintiffs in a separate case, saying the FTC did not have the necessary authority from Congress to implement the list.

West said the 1994 Telemarketing and Consumer Fraud and Abuse Prevention Act gave the Federal Communications Commission, not the FTC, the authority to operate a national database of people who do not want to receive telemarketing calls.

Congress moved to respond to West’s decision, but his hold on the list will also stay in effect until he or a higher court dismisses the case.

Even as Congress was moving to strengthen the FTC’s ability to establish the registry, consumers were still able to sign up for the free service.

“It’s business as usual,” said spokeswoman Cathy MacFarlane.

Analysts expect the FTC to appeal both Tuesday’s and Thursday’s decisions and the 10th U.S. Circuit Court of Appeals will likely hear both cases.

The telemarketing industry estimates that implementation of the do-not-call list could cut its business in half, costing it up to $50 billion in sales each year. Analysts also expect the registry to block 80 percent of telemarketing calls to numbers listed.

Under the FTC’s do-not-call list regulations, telemarketers would have to check the registry every three months to get an updated list of people who do not want to be called. Telemarketers who call people on the list could be fined up to $11,000 for each violation.

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