WASHINGTON — With remarkable speed and near unanimity — excepting two Utah congressmen and six of their House colleagues — Congress on Thursday passed legislation intended to ensure consumers can block many unwanted telemarketing calls.
But whether the service millions of Americans signed up for takes effect next week was again thrown into doubt when a second federal judge ruled the list violates free-speech protections. U.S. District Judge Edward W. Nottingham in Denver blocked the list late Thursday, handing another victory to telemarketers, who argue the national registry is unconstitutional and will devastate their industry.
His ruling came shortly after the House and Senate voted overwhelmingly — 412-8 in the House, 95-0 in the Senate — for a bill making clear that the Federal Trade Commission has the power to enforce the "do-not-call" list. The legislation was prompted by an earlier ruling by U.S. District Judge Lee R. West in Oklahoma City who said the FTC lacked the power to create and operate the registry.
President Bush said he looks forward to signing it. "Unwanted telemarketing calls are intrusive, annoying and all too common," he said in a statement.
Two of the tiny opposition minority in the House are Reps. Rob Bishop and Chris Cannon, both R-Utah. Utah's third House member, Democrat Jim Matheson, voted for the bill, as did Sens. Orrin Hatch and Bob Bennett, both R-Utah, for the Senate version.
"I know that likely will be unpopular," Bishop said of his vote. "But I think it's the right thing to do. The bill doesn't ban all calls, just some. For example, it doesn't ban calls from politicians. It's hypocritical for Congress to block other calls but not its own."
He also voted against the original legislation that created the list earlier this year.
Cannon switched positions to oppose it this time, and the reason was unclear. He flew to Utah shortly after the vote, and his staff could not immediately offer explanations for his vote.
Both the House and the Senate measures are intended to more clearly give the Federal Trade Commission authority to impose the no-call list as scheduled next week. West ruled this week that the FTC lacked that authority.
Bishop said he knows the idea of a no-call list is popular with most people — Americans have placed more than 51 million phone numbers on it — but he still feels it improperly interferes with freedom of speech, a point also cited Thursday by the federal judge in Denver.
"The right to have dinner without being interrupted is not in the Constitution," Bishop said. "It was pointed out in debate that the only real way to enforce this would be to monitor phone calls."
Bishop, a freshman, said he was also turned off by "the self-congratulatory tone" of House speeches that he said appeared to be pandering for votes by offering something "popular that really isn't the right thing to do."
Despite the uncertainty, the FTC is encouraging people to continue signing up for the list at the Web site www.donotcall.gov or by calling 1-888-382-1222.
The FTC asked West to block the order he issued Tuesday declaring the agency lacked proper authority to oversee the list. He declined Thursday, and the FTC immediately appealed to the 10th U.S. Circuit Court of Appeals in Denver.
The FTC had no immediate comment on Nottingham's ruling, but it also probably will end up with the 10th Circuit.
The suit in Nottingham's court was filed in January by two telemarketing companies and the American Teleservices Association, which represents call centers.
Nottingham said the do-not-call list was unconstitutional under the First Amendment because it does not apply equally to all kinds of speech, blocking commercial telemarketing calls but not calls from charities. "The FTC has chosen to entangle itself too much in the consumer's decision by manipulating consumer choice," Nottingham wrote.
Ken Johnson, spokesman for Rep. Billy Tauzin, R-La., chairman of the House Energy and Commerce Committee, said the ruling "puts a little damper on the party, but we're still confident of prevailing in the end." He said Tauzin's staff was reviewing the Denver decision.
During brief debates, House and Senate members made it clear they want the list.
"Clearly the court's decision was misguided," said Sen. John McCain, R-Ariz., referring to West. "The measure before us makes crystal clear the commission can and should proceed with the do-not-call list."
West's ruling caught lawmakers off guard, but they responded with remarkable speed. Bills can take months or even years to pass, but the do-not-call legislation was drafted and approved in both chambers in little more than 24 hours.
The rapid response underscored the popularity of the list, which after fewer than four months already has nearly 51 million numbers.
"This legislation got to the House floor faster than a consumer can hang up on a telemarketer at dinnertime," said Rep. Edward Markey, D-Mass.
The FTC expects the list to block four of every five telemarketing calls. Exemptions include calls from charities, pollsters and on behalf of politicians.
The FTC's rules require telemarketers to check the list every three months to see who does not want to be called. Those who call listed people could be fined up to $11,000 for each violation. Consumers would file complaints to an automated phone or online system.
Telemarketers say the list would severely harm their industry and lead to the loss of thousands of jobs. Still, the Direct Marketing Association, one of the groups that challenged the registry, said it has asked its members to obey the wishes of those who are enrolled in the registry.
"It is appropriate for marketers to respect the wishes of consumers," said H. Robert Wientzen, the association's president.