Mitchell N. Roth
mroth@williamsmullen.com

As appeared in e-Connections newsletter, a publication of the American Teleservices Association.

The benefits of living in a modern, free society is that when there are uncertainties regarding the constitutionality and enforceability of a law, our nation’s courts role will them. Right? Well, apparently not with respect to the federal Do-Not-Call registry created by the Federal Trade Commission and the Federal Communications Commission. Rather, the courts have done nothing less than bestow bewilderment upon the teleservices industry and the 51 million Americans who allegedly listed every telephone number ever assigned to them on the list.

A recap of the past several weeks reads like a piece from a Monty Python movie:

First, Judge West of the U.S. District Court in Oklahoma determined that the FTC did not have congressional authority to create the list in the first place. Therefore, the DNC program may not go into effect.

DNC Off.

In response, Congress, putting aside trivial issues such as terrorism, Iraq and Afghanistan, passed a bill which expressly gives the FTC the authority which the court ruled it lacked.

DNC On.

Next, Judge Nottingham, apparently from the forest of equal name, found in favor of the ATA and ordered that the manner in which the DNC rule was implemented is an unconstitutional burden on telemarketers’ free speech. As a result, the judge enjoined the FTC from enforcing its list.

DNC Off.

Not to be outdone, in separate litigation which the ATA filed against the FCC, a panel of the 10th Circuit Court of Appeals, refused to stay the FCC’s program pending the litigation.

DNC Partially On.

Next, Judge Nottingham, in ruling on a motion brought by the FTC, refused to postpone his injunction of the FTC’s list during the pendency of the FTC’s appeal.

DNC Partially Off.

The FTC then appealed Judge Nottingham’s decision to the 10th Circuit Court of Appeals and requested that the appeals court postpone Judge Nottingham’s injunction during the appeals process.

Waiting for decision.

So, this is where we stand. We have the FTC which is enjoined from enforcing its list and sharing the contents of the list or any information associated with the list with any third party, including the FCC. We have the FCC which is free to pursue its DNC program. However, since the list is actually maintained by the FTC and since the FTC is prohibited from sharing its list with the FCC, the FCC does not have access to the list which it will try to enforce. Nor is the FCC aware of which telemarketers and sellers have registered for the list and which have downloaded it. Nevertheless, the FCC insists that it will enforce the list, but can only do so if some gracious person out there will give it a copy of the list. The FCC even stooped the level of requesting that the DMA provide it with the list; fortunately, the DMA thought better of it.

So, you think you are confused…you are not alone. The ambiguity surrounding the status of this federal program is unprecedented. Many in the industry have determined that they will voluntarily comply with the list, while others, especially those did not access the list before it was shut down, determined that they will not. In the meantime, companies are left to decide on their own (after close consultation with legal counsel, of course) to determine the most appropriate course of action.