Telemarketing Group Makes Nice

The largest telemarketing industry group says it wants its members to abide by the national "do-not-call" list next week despite two court rulings that have thrown the program's future into legal limbo.

"We are telling our members, yes indeed, we don't want you calling people who have told anyone they don't want any calls," Direct Marketing Association President H. Robert Wientzen said Friday. He said he hasn't had time to arrange agreements making that request binding, but "up to the moment I have had nobody disagree.:

The list of nearly 51 million phone numbers is scheduled to go into effect Wednesday, but a fight between Congress and the courts over a the list is mired in legal limbo, with consumers wondering whether promised relief from telemarketers will happen.

Supporters of the free government service had barely begun to celebrate an overwhelming vote Thursday in Congress to counter a federal court ruling when they learned that another judge had blocked the list from taking effect next week.

"It puts a little damper on the party," said Ken Johnson, spokesman for Rep. Billy Tauzin, R-La., chairman of the House Energy and Commerce Committee. "But we're still confident of prevailing in the end."

Tauzin led an effort in the House to pass a bill making clear that the Federal Trade Commission has the authority to enforce the do-not-call registry. The legislation was prompted by a ruling Tuesday by U.S. District Court Judge Lee R. West in Oklahoma City that said the FTC lacked the power to create and operate the registry.

"Clearly the court's decision was misguided," said Sen. John McCain, R-Ariz.

The House voted 412-8 and the Senate 95-0 for the bill Thursday. President Bush said he looked forward to signing it Monday. "Unwanted telemarketing calls are intrusive, annoying and all too common," he said in a statement.

But late in the day, U.S. District Judge Edward W. Nottingham in Denver blocked the list, handing another victory to telemarketers who argued the national registry will devastate their industry and lead to the loss of thousands of jobs.

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.

CBSNews.com Legal Analyst Andrew Cohen says Nottingham's ruling about free-speech issues complicates the situation more severely than the first ruling by the Oklahoma judge.

"It suggests that Congress' quick-fix legislation may not be enough to get the plan through," he said. "In other words, lawmakers may have been able to plug the gap from the first ruling, but it will be much more difficult for them to so quickly overcome first amendment problems with the rule."

The FTC had no immediate comment on Nottingham's ruling, but it also probably will end up with the 10th Circuit

The list, which would block an estimated 80 percent of telemarketing calls, is supposed to be effective Wednesday, but it's unclear whether legal issues will be settled by then. Even after Mr. Bush signs the legislation, the FTC must win in court for the list to move forward.

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.

West rejected an FTC request to delay his order, saying the agency offered no additional evidence that would make him change his mind. The FTC immediately appealed to the 10th U.S. Circuit Court of Appeals in Denver.

While it was unclear how West's order would affect the FTC's plans, the second ruling more directly prohibits the government from enforcing the do-not-call list. The constitutional issues raised also may not be solved as easily.

The first court 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 in an election year. After fewer than four months, it already has nearly 51 million numbers.

Rep. Edward Markey, D-Mass., said he was one of the first people to sign up. "This legislation got to the House floor faster than a consumer can hang up on a telemarketer at dinnertime," he said.

Since issuing the ruling, West's home and office have been bombarded with calls from angry consumers. His numbers were posted on the Internet and people were encouraged to call.

Late Thursday, Nottingham's phone numbers began to surface online as well.

The case decided by West was brought by a coalition of telemarketers, including the Direct Marketing Association, an industry group.

The suit in Nottingham's court was filed by two telemarketing companies and the American Teleservices Association, which represents call centers. The association has another lawsuit pending in Denver against the Federal Communications Commission, which added its authority to the list to block calls from certain industries, including airlines, banks and telephone companies.

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.

Exemptions to the list include calls from charities, pollsters and on behalf of politicians.