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Capitol Hill (CNSNews.com) – As President Bush signed legislation Monday authorizing the implementation of the national do-not-call registry, a California-based consumers’ group said Congress should hang up on the federal courts’ continued interference with the effort to block unwanted commercial telemarketing calls.

“Last week, a federal judge objected to the do-not-call registry on the grounds that Congress had not authorized its creation,” Bush explained. “So, the House and the Senate authorized its creation …The Senate voted 95 to zero, the House 412 to eight to affirm the decision by the FTC, and it has affirmed the wishes of the American people.”

Before signing the bill into law, the president noted than more than 50 million Americans had already placed their wired and wireless telephone numbers on the list.

“The American people clearly like the idea of a do-not-call registry,” Bush said. “This is a practical solution to address a growing concern.”

But, even as he enacted the law to overrule one federal judge’s opposition to the registry, Bush accepted that the fight to end dinnertime interruptions by telemarketers selling everything from magazine subscriptions to vinyl siding is not finished.

“The do-not-call registry is still being challenged in court,” Bush acknowledged. “Yet, the conclusion of the American people and the Legislative Branch and the Executive Branch is beyond question.”

The law Bush signed would have cleared the way for the effort to block most calls from telemarketers to take effect Oct. 1. But a second federal judge ruled last week that implementation of the list as it exists would violate the First Amendment free speech rights of telemarketers.

U.S. District Judge Edward Nottingham ruled the do-not-call registry unconstitutional because it would forbid most commercial calls but would allow non-commercial calls, including fundraising solicitations from charities and political candidates and questions from surveyors and pollsters.
“The court finds that the FTC’s do-not-call registry does not materially advance its interest in protecting privacy or curbing abusive telemarketing practices,” Nottingham wrote.

“The registry creates a burden on one type of speech based solely on its content without a logical, coherent, privacy-based or prevention-of-abuse-based reason supporting the disparate treatment of different categories of speech.”

At least one group representing telemarketers is taking advantage of the court’s decision.

“We are pleased with the court’s decision to protect the right of free speech guaranteed under the First Amendment,” said Tim Searcy, executive director of the American Teleservices Association (ATA), a trade group that exclusively represents telemarketers and one of the plaintiffs in the second federal lawsuit.

“We are committed to working with the federal government toward a measure that respects consumers across the country without infringing on the basic right of free speech,” Searcy added.

Consumer group says only religious and political speech should be protected.

But Jamie Court, executive director of the Foundation for Taxpayer and Consumer Rights (FTCR), denies that the First Amendment protects commercial speech. Court told CNSNews.com on Monday that the FTC had properly limited commercial speech while exempting those areas he believes enjoy constitutional protection.

“Political speech [and] religious speech are clearly what the framers had in mind in terms of a First Amendment communication that’s protected from governmental restrictions,” Court argued. “The framers never conceived that commercial speech would have First Amendment protection. In fact, until 1976, it did not.”

In 1976, the Supreme Court established through its ruling in the Virginia Board of Pharmacy case that: “‘Commercial speech’ is not wholly outside the protection of the First and Fourteenth Amendments,” and that “a State may not suppress the dissemination of concededly truthful information about entirely lawful activity.”

The court defined “commercial speech” as speech that proposes a financial transaction and said that “there is no doubt that the First Amendment protects this type of speech from unwarranted government regulation.”

Court, author of Corporateering: How Corporate Power Steals Your Personal Freedom and What You Can Do About It, argues that the federal judiciary overstepped its bounds and “created” constitutional rights for corporations where, he believes, none existed in the past.

“This notion that there is a protection for commercial speech or for corporate speech through money is a creation of a very creative Supreme Court and a conscious decision by corporations, as they were growing up in the ’70s into trans-national corporations, to push their legal rights in the courts through some creative legal arguments,” Court argued. “The end result is what we’re stuck with now: We can’t stop invasions of privacy.”

Reps. Billy Tauzin (R-La.) and John Dingell (D-Mich), the chairman and ranking member, respectively, of the House Energy and Commerce Committee, also disagreed with Nottingham’s decision, but they took a different approach in their opposition.

“The do-not-call registry does not restrict a salesman’s right to speak; rather, it empowers American consumers who choose not to listen. Putting your name on the do-not-call list is no different than hanging a ‘no solicitation’ sign on your front door,” the congressmen said in a joint statement. “This issue is not about speech, it is about American citizens deciding who they let into the privacy of their homes.”

Judge seems to hint at solution to constitutional dilemma in analysis

The Federal Trade Commission argued in its response to the ATA lawsuit that the do-not-call registry is identical to the option provided by the U.S. Postal Service for patrons to block deliveries from any patron they specify. The Supreme Court ruled that system was constitutional in Rowan v. U.S. Post Office Department.

But Nottingham noted that, unlike the USPS service, which allows postal patrons to choose who they will and will not receive mail from, the FTC had made the decision for telephone customers. Eliminating that flaw, the judge seemed to hint in his decision, could be the key to getting the do-not-call registry past the federal courts.

“Although the consumer does retain the choice whether to sign up for the registry, the government has removed the absoluteness of that autonomy by itself exempting certain types of speech from the restrictions of the registry,” Nottingham wrote. “Were the do-not-call registry to apply without regard to the content of the speech or to leave autonomy in the hands of the individual…it might be a different matter.”

Despite the judge’s statement, Court believes changing that part of the registry would be unconstitutional.

“Congress needs to make clear that those rulings in the mid-’70s, which have continued on, are aberrations and not the intent of the founders,” Court argued. “I think it is a violation of a free speech right to limit political contact or to limit religious freedoms. But commercial speech is a whole different category.”

Tauzin and Dingell may not agree with Court, but they have promised to take some action. “Rest assured,” the congressmen said, concluding their statement, “we will examine the judge’s opinion closely and will take whatever steps we can to ensure that the do-not-call registry is open for business as scheduled.”

The Federal Communications Commission also announced Monday that, since Nottingham’s ruling did not discuss the enforcement rules that agency has formulated to deal with violations of the do-not-call registry, it will proceed as planned Wednesday with fines of up to $11,000 per call for any telemarketer who calls numbers already entered into the registry.