Untangling Do-Not-Call's Twists


Trying to keep up with the Do-Not-Call Registry is little like playing the children's game whack-a-mole. After more than 50 million people had signed up for the list, which aims to stop telemarketers from bothering them, and a week for before its Oct. 1 launch: Whack! A court shut it down. Congress broke all speed records in passing a law fixing what the court said didn't pass muster. Whack! Another court shut it down again.

Next, the Federal Communications Commission (FCC) promised to take advantage of loopholes in the court's decision so that do-not-call could be kept alive. Whack! The courts said forget about it. Finally, telemarketers promised to be good and stop calling anyway. Whack! Those same telemarketers then launched a public-education campaign warning consumers that do-not-call was so loophole- riddled it wouldn't stop the calls anyway.

Is this game over? Not yet. Here's a ready reckoner to help you understand the issues involved -- and why the calls keep dragging you away from the dinner table:

Why all the fuss over implementing what seems like a simple idea?

For more a decade, consumers have been demanding a do-not-call list. Back in 1991, Congress gave the FCC the authority to create one. But the agency didn't think it would work.

Fast forward to 2002, when another federal agency, the Federal Trade Commission (FTC) and its activist chairman, Timothy J. Muris, decided to get the job done. Unfortunately, the FTC launched the list without getting the necessary approval from Congress -- a move that gave telemarketers an opening to sue on procedural grounds. In addition, the FTC used the 1991 proposal as its model for the new rule, including a lot of exceptions proposed back then. Those exceptions handed telemarketers even more ammunition to sue, this time on constitutional grounds.

Why did the courts strike down the law?

For two weeks in late September and early October, a series of conflicting rulings by four courts in two separate lawsuits created intense confusion over whether the law would go into effect Oct. 1 as planned. Telemarketers first sued the FTC in January, claiming the list was illegal because Congress hadn't given the agency permission to create it. On Sept. 23, a District Court judge in Oklahoma City agreed. An irate Congress rushed to fix the problem -- on Sept. 25, lawmakers granted the FTC the authority it needed, appeasing the Oklahoma court and silencing telemarketers' arguments.

Victory was short-lived, however. That same afternoon, as Congress and the White House celebrated their victory over telemarketers, a Denver District Court judge stopped the party, ruling that the law was illegal because it violated corporations' right to free speech. That's correct, such a thing exists in America.

Meanwhile, in a second telemarketing lawsuit, a different set of courts was sending the opposite message. On Sept. 26, a 10th U.S. Circuit Court of Appeals panel, also in Denver, said the FCC could enforce its part of the do-not-call rule. Telemarketers asked the U.S. Supreme Court to intervene and block the list, but the court declined. The Denver appeals court resolved the issue on Oct. 7, at least temporarily, when it said the FTC could also enforce do-not-call while the case aimed at shutting down the measure wends its way through the legal system.

So, what happens next?

The 10th Circuit Court of Appeals is preparing to hear both cases -- the suit against the FTC, and the suit against the FCC -- in the coming months. Because the lawsuits raise thorny constitutional questions about corporate free speech and equal protection, it could take years and a trip to the Supreme Court before do-not-call's fate is ultimately decided.

Could Congress get involved again?

Congress can't do anything until the courts decide if the law is constitutional. After the Denver court found the registry unconstitutional, lawmakers consulted with some of the nation's leading free-speech experts to try to find a way to undo the judge's ruling. They concluded that their hands were tied.

Is the do-not-call law in effect?

Yes, while the 10th Circuit Court of Appeals hears the case. The FTC began enforcing do-not-call on Oct. 7. As of that date, people who registered before Aug. 31 should have noticed a drop in the number of telemarketing calls they receive. But telemarketers are required to update their do-not-call lists only four times a year, so if you signed up for the list after Aug. 31, it will take up to three months before you see results.

Can I still get on the do-not-call registry?

Yes. The FTC's do-not-call Web site reopened for business Oct. 9 and is accepting new phone numbers. More than 51 million are already on the list.

How long will my number stay on the list?

Five years. After that, you'll have to renew your registration. If you move or get a new telephone number, you also must add that new number to the registry to have calls blocked.

Say I registered before Aug. 31, why am I still getting calls?

Unfortunately, do-not-call is indeed full of loopholes. Charities, political parties, candidates, market researchers, pollsters, and corporations who aren't selling anything are still allowed to call you. In addition, companies with which you do business -- your bank, phone company, grocer, insurance agency, or florist -- may keep calling (see BW Online, 9/18/03, "Where Do Not Call Does Not Count").

Under the law, you have the option of giving a company permission to solicit you by phone, and telemarketers are expected to find surreptitious ways to win your permission. Be wary of the fine print when entering sweepstakes or raffles, signing up for new credit cards, filling out product-registration forms, or purchasing anything on the Internet that requires you to click an "I Agree" button. You might unwittingly be giving a company a legal way to continue calling you. To reduce legal telemarketing calls, you can also instruct individual callers to remove your number from their own list.

What else can I do to close up the loopholes?

If a company you do business with calls you, ask that you be added to the company's don't call roster. And if you call a company or business even for something as seemingly benign as directions or store hours make sure you say you don't want to receive unsolicited marketing calls.

And for $20 a year, you can sign up with Private Citizen, an organization that will send out a letter on your behalf to 1,900 junk callers and list sellers. In addition to warning survey takers, businesses, and political organizations of your unwillingness to be called, Private Citizen will also warn the potential callers of a $500 fee -- payable to you, not Private Citizen or the government -- if they take up your time with a solicitation.

What if I have a complaint?

If you think a telemarketer has called you illegally, get the company's name or phone number, as well as the date of the call. The FTC has created a complaint checklist to help consumers determine whether a call might be illegal. The form, in .pdf fprmat, can be downloaded from the FTC's Web site. To file a complaint, visit donotcall.gov, or call the FTC at 888 382-1222. By Lorraine Woellert in Washington, D.C.


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