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DMA SOFTENS OBJECTIONS TO 'DO NOT CALL' LAW

'You Go With Reality' Says Spokesman Citing Public Sentiment

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WASHINGTON (AdAge.com) -- The Direct Marketing Association today softened its position against a federally-mandated "do not call" list for telemarketers, suggesting its biggest desire is a "one stop" list that would keep marketers from having to buy separate lists from state and federal agencies.

At first the DMA seemed to endorse a proposal for a national do-not-call list from the Federal Communications Commission, but the trade group said afterward "the jury is out" on whether the government should get involved with preventing telemarketers from reaching consumers.

FTC: $16 million needed
The DMA's comments came after the House Energy and Commerce Committee heard Federal Trade Commission Chairman Timothy Muris' plea to Congress for it to allocate $16 million the FTC says it needs to fund its own do-not-call list. Marketers will eventually pay the list's whole cost through fees collected to access the list.

The DMA's position advocating any sort of list puts it at odds with the American Teleservices Association, which represents callers. The DMA represents marketers.

Matthew Mattingley, director of

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government affairs for the telemarketing association, said today his group continues to believe that any attempt by the federal government to block marketers from calling consumers is unconstitutional and that the group is readying a lawsuit challenging the FTC rule change.

Embraced by the public
That also had been the DMA's position, but today Jerry Cerasale, the DMA's senior vice president, cited the difficulty of successfully challenging a concept widely embraced by the public.

"You go with reality," he said, citing the number of states implementing their own lists. "The states are going forward, and we could have 50 lists, and you have a situation where it is very expensive [to comply] and it really hampers interstate commerce. We think there should be one-stop shopping for consumers and telemarketers. Let's get it all together and do it right."

Mr. Cerasale said the DMA supported a government list put forth by the FCC rather than the FTC because the FCC has authority over a broader range of marketers, including heavy telemarketers such as banks and telephone companies, and he denied that there was hope marketers would get a better deal under FCC Chairman Michael Powell.

"If the FTC list goes into effect and people still get calls [because some marketers aren't covered by the FTC rules], it would be another black eye for direct marketers," he said.

Misspoke
A DMA spokesman, however, later said that Mr. Cerasale misspoke and the DMA isn't pushing for the government to act. The spokesman said the DMA still thinks its own voluntary list is sufficient.

Telemarketers have been discussing a lawsuit challenging the list, arguing that the FTC, which generally polices fraudulent or unfair marketing, didn't have legal authority to proceed against nonfraudulent, nonharassing phone calls, and that the proposal violated marketers' First Amendment rights to call consumers.

Commerce Committee Chairman Billy Tauzin, R-La., said today that he was considering inserting language into any funding bill to avoid one of the court issues by giving the FTC additional authority.

"The concern we have is whether this is just going to end up in court, blocked and delayed, if it's done under the auspices of a statute that isn't clear," he said.

Lawsuit likely
Mr. Mattingley said even if that happened, a lawsuit was still likely.

"Our objection is with the concept of blanket do-not-call list," he said. "The foundation of any legal challenge would be partially on statutory and partially on a constitutional basis. There may be an attempt to achieve a congressional fix, but that does not address the constitutional issues."

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