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Cites Technicality in Establishing Legislation

By Published on .

SAN FRANCISCO (AdAge.com) -- Citing a technicality in the original legislation, a U.S. District Court Judge in Oklahoma has ruled that the government failed to
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properly authorize the Federal Trade Commission to establish a national Do Not Call Registry.

In response to a suit brought by the Direct Marketing Association, Judge Lee R. West said Congress empowered the Federal Communications Commission to create do-not-call list in 1991. However, later legislation, including a bill signed into law this year by President Bush that authorized the FTC to create a list and to collect fines from violators, never actually gave the FTC the power to establish one, the judge said.

Ruling's impact unclear
With the list scheduled to go into effect Oct. 1, the actual impact of Tuesday's ruling was unclear.

In a statement, FTC Chairman Timothy Muris termed the decision "clearly incorrect," adding, "We will seek every recourse to give American consumers a choice to stop unwanted telemarketing calls."

While Tuesday's decision dealt with technicalities that could be rectified by legislative and administrative activity, a more serious challenge is pending in the 10th District court in Denver in a case brought by the American Teleservices Association. That suit challenges the list's constitutionality on the basis of the First and Fifth Amendments.

"We are excited about the DMA's win and anticipate a similar outcome in our won case in Denver," said Dave Schemelia, an ATA spokesman. A decision on the Denver case has been anticipated since Sept. 15, he said.

Millions of consumers
The DMA in a statement on its Web site, said it "acknowledges the wishes of millions of U.S. consumers who have expressed their preferences not to receive telephone-marketing solicitations." The DMA "continues to support and believe in the efficacy of a national list for consumers to express their preference not to receive telephone solicitations" and has offered a no-call list since 1985, the statement said.

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