US court to clamp telemarketers

WASHINGTON: A U.S. appeals court said that it would likely approve an anti-telemarketing measure that two lower courts had blocked days earlier, adding a further twist to what has been a rollercoaster week for the popular program.

The 10th Circuit Court of Appeals in Denver denied a request by telemarketers to halt the federal government's "do not call" list and said it would likely rule in favor of the measure when it soon hears the case.

The telemarketers "have failed to establish a substantial likelihood of success on the merits," a three-judge panel said.

The decision has no immediate effect on two lower-court rulings that sidelined the list earlier this week, meaning that consumers who placed some 50 million phone numbers on the no-call list will likely still receive telemarketing calls after Oct. 1, the original start date.

The appeals-court decision capped a whirlwind week which saw Congress move with uncharacteristic speed to overcome the objections of a federal court in Oklahoma City, which said the Federal Trade Commission lacked authority to run the list.

But to Congress' dismay, another court in Denver struck it down again, this time on free-speech grounds.

The appeals panel ruled on a third challenge -to the Federal Communications Commission's role in helping the FTC develop the list.

Nevertheless, the appellate decision provided an important clue to how the court is likely to rule on free speech issues brought up by the list.

Telemarketers say the list infringes their free speech rights under the U.S. Constitution, while the government says commercial speech such as theirs is entitled to less protection.

The appeals panel said that while telemarketers will be harmed by the no-call list, which would deny them millions of sales prospects, that concern is outweighed by the privacy interests of the tens of millions of Americans.

The panel said it would hear the challenge to the FCC's role on an expedited basis.

The FTC said it was confident the do not call list would survive, a view backed up by several legal experts.

"Our constitution allows consumers to choose not to receive commercial telemarketing calls," FTC Chairman Timothy Muris said in a statement. "We will seek every recourse to give American consumers a choice to stop unwanted telemarketing calls."

Though the Denver appeals court has decided consumer-privacy cases for commercial interests in the past, a Supreme Court decision that allows consumers to block junk mail should loom large in the no-call case, said David Sobel, chief counsel at the Electronic Privacy Information Center.

"There's a strong precedent on the side of consumers' rights to prevent intrusions into their homes," said Sobel.

ENFORCING A LIST THAT DOESN'T EXIST?

A spokesman for a telemarketers' organization which filed suit against the FCC said he didn't yet know what to make of the thicket of rulings.

"A cursory review would say that the FCC is entitled to enforce a list that constitutionally doesn't exist, which is confusing," said Tim Searcy, executive director of the American Teleservices Association.

Confusion seemed to extend to the halls of government, as well, where bureaucrats puzzled over the latest twist.

"We haven't uncorked any champagne yet," said one government source who declined to be named.

Lawmakers, fresh from Thursday's bipartisan vote, said they believed the list did not infringe free-speech rights.

"Putting your name on the do-not-call list is no different than hanging a 'no solicitation' sign on your front door," said Reps. Billy Tauzin and John Dingell, the chairman and top Democrat, respectively, on the House Energy and Commerce Committee.

Privacy advocate Jason Catlett predicted the list would eventually see the light of day.

"Consumers have the unusually lucky combination of strong support from the FTC, the FCC, the White House, and Congress here, and so I'm confident that it will come out fine," said Catlett, president of the Junkbusters Corp. consulting firm.

© Reuters