WASHINGTON — Despite two straight losses in court, federal officials said Friday that they hope to get a national "do not call" list up and running by its scheduled Oct. 1 launch.
One telemarketing trade group is urging its members not to call the numbers on the registry while it's in limbo. Another said its members would continue to call the more than 50 million phone numbers on the Federal Trade Commission's list. Consumers placed their numbers on the list in hopes of warding off telemarketing calls.
For the list to take effect, however, government lawyers must overcome Denver federal court judge Edward Nottingham's finding Thursday that the list violates telemarketers' commercial free-speech rights. The key problem, Nottingham wrote, was that the federal ban on calls would apply to telemarketers but not to charities, political solicitors or businesses that have had previous relationships with their customers. It's unconstitutional, he found, to curtail free speech for some groups but not others.
In a statement issued Friday, FTC Chairman Timothy Muris said that Nottingham's reasoning could also invalidate do-not-call registries kept by 27 U.S. states.
Los Angeles attorney Deborah Thoren-Peden, who counsels companies on privacy and free speech issues, said federal courts have long recognized a hierarchy of rights that gives less protection to commercial speech than to political discourse or social speech.
Thoren-Peden said she was surprised by Nottingham's ruling and expects the FTC to prevail on appeal, although perhaps not until the case reaches the Supreme Court.
The bi-partisan passage of the most recent "Do Not Call" bill by Congress was not reflected in Utah's delegation. Both of the state's Republican representatives voted against giving the FTC the necessary power to impose the restrictions.
Friday, Donald Dunn, the state Democratic Party chair, criticized both Rep. Rob Bishop, R-Utah, and Rep. Chris Cannon, R-Utah, for opposing the changes.
"There aren't many bills that pass Congress with so many votes," Dunn said. "It's sad that two of the eight votes against it came from Utah."
Pointing out more than 375,000 Utahns registered for the list, Dunn said it's obvious people in both representatives' districts are tired of the "annoying" calls to their homes at inconvenient times. Yet for some reason, neither Cannon nor Bishop felt that way, and Dunn urged their constituents to call their offices to help them understand.
"We need to send a clear message to these two that people don't want to be bothered," Dunn said. "I don't think they're getting that message."
Far less likely, several experts said, is congressional intervention to eliminate the special protection enjoyed by charitable and political solicitors under the current FTC rule.
"I think they simply won't do it. One reason is for their own campaign interests, but another is that nonprofits and charities have strong standing and were not what the (FTC) was trying to" target with the rule, said Bruce Mann, a senior fellow at the Brookings Institution, a nonprofit Washington think tank.
"The court's reasoning, if adopted elsewhere, would effectively cripple virtually every do-not-call registry in the United States, whether state or federal. I do not believe that our Constitution dictates such an illogical result," Muris wrote.
Unless the FTC can convince an appellate court otherwise, Nottingham's decision "forbids us to enforce the rule, which means we cannot enforce the registry," FTC General Counsel William E. Kovacic conceded Friday.
The Direct Marketing Association, a New York trade group that represents telemarketers and other retailers that solicit by mail, the Internet and other means, asked its telemarketers not to make calls.
But Tim Searcy, president of the Indianapolis-based American Teleservices Association, which represents only telemarketers, said Friday that his group would persist.
"We say our members don't have an obligation by law not to call those numbers because the law has been found invalid. We're not obliged to abide by something that is not legitimate," he said.
FTC attorneys on Friday informed the 10th Circuit Court of Appeals in Denver that they would appeal Nottingham's decision. They also sought an emergency stay of the judge's ruling until the appeal is heard.
U.S. Reps. Billy Tauzin, R-La., and John Dingell, D-Mich., chairman and ranking Democrat on the House Energy and Commerce Committee, also slammed Nottingham's ruling, saying the registry doesn't restrict telemarketers' right to speak, but rather empowers consumers who don't want to listen.
"Putting your name on the do-not-call list is no different than hanging a 'no solicitation' sign on your front door. This issue is not about speech, it is about American citizens deciding who they let into the privacy of their homes," they said in a joint statement.
Contributing: Josh Loftin, Deseret Morning News.