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FCC takes do-not-call list off hold

President Bush signs do-not-call legislation Monday in the Roosevelt Room of the White House as conflicting court opinions keep the public guessing.
President Bush signs do-not-call legislation Monday in the Roosevelt Room of the White House as conflicting court opinions keep the public guessing.
Susan Walsh, Associated Press

WASHINGTON — The bewildering fight between the government and telemarketers over the national do-not-call list took another turn Monday when a second federal agency said it would enforce the program, promising that consumers would soon see some reduction in telephone sales pitches.

The Federal Communications Commission said it would seek fines of up to $120,000 against telemarketers each time they call people on the registry. The FCC got involved because the Federal Trade Commission, which is compiling the list and planned to enforce it, has been blocked by a federal judge.

The list of more than 50 million telephone numbers registered by people who don't want to hear from telemarketers is scheduled to go into effect Wednesday.

The public is being encouraged to continue signing up for the service and many telemarketers plan to respect the wishes of those on the list even while legal questions remain.

"One of the things we all need to do is take a deep breath," FCC Chairman Michael Powell said. "What you've got is virtually everyone in federal government here working to leave no avenue unexhausted to make sure the list works as fully as legally possible."

Prompted by two court rulings last week favoring telemarketers, seemingly every elected official in Washington has sought to show their commitment to the do-not-call list. Republicans and Democrats in Congress joined forces to pass a bill in near-record speed last week and President Bush signed it Monday.

The measure gives explicit authority to the FTC to set up and operate the do-not-call list, a distinction made moot by a court order that came down after Congress acted. Bush did not mention that.

"The public is understandably losing patience with these unwanted phone calls, unwanted intrusions," he said at a White House ceremony. "Given a choice, Americans prefer not to receive random sales pitches at all hours of the day. The American people should be free to restrict these calls."

The legislation came after U.S. District Judge Lee R. West in Oklahoma City ruled last week that the FTC lacked authority to run the registry.

At about the same time that Congress passed the bill Thursday, U.S. District Judge Edward W. Nottingham in Denver ruled the do-not-call list unconstitutional on free-speech grounds because it applied to calls from businesses but not charities. That decision blocked the FTC from enforcing the list. The FTC has asked the court to suspend its decision while the agency appeals.

Another court decision left the FCC free to act. A three-judge panel of the Denver-based 10th U.S. Circuit Court of Appeals on Friday denied a request from telemarketers to block the FCC's role in the registry.

On Monday, Supreme Court Justice Stephen Breyer refused to block that decision, but telemarketers could renew their request with another justice. If the Supreme Court grants the request to temporarily suspend the FCC's rules, both agencies would be blocked from enforcing the list.

The FTC says people can still sign up for the list and file complaints about telemarketer violations at www.donotcall.gov or by calling 1-888-382-1222.

FCC officials said complaints will be forwarded to their agency for enforcement. Consumers can also file complaints directly with the FCC by calling 1-888-225-5322.

The list was originally intended to block about 80 percent of telemarketing calls. Exemptions included calls from charities, pollsters and on behalf of politicians.

The largest telemarketer association, the Direct Marketing Association, has encouraged its members to comply with the list even while it fights it in court. Nearly 200 of the association's largest members have agreed.

The do-not-call list works by requiring telemarketers to pay for a copy of the list so they can know who to avoid calling. Many telemarketers have the list, but some do not and cannot obtain it since the FTC shut down that aspect of the program on Sunday in response to the court rulings.

Since the FCC can only penalize telemarketers who have gotten the list, the situation could leave holes in the FCC's enforcement ability, allowing some businesses to keep calling consumers without fear of reprisals.

Telemarketers are worried they could be penalized whether they have the list or not.

"This leaves marketers, especially small ones, who had waited to purchase the list, due to last week's legal decisions, or who had read statements from the FTC indicating that they may be able to receive it free of charge, in a catch-22," said Jerry Cerasale, a senior vice president with the Direct Marketing Association.