SUPREME COURT TURNS AWAY CHALLENGE TO DO-NOT-CALL

Telemarketing Group Sought to Overturn Appeal Court Ruling

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WASHINGTON (AdAge.com) -- The U.S. Supreme Court today refused to hear an appeal by a telemarketing industry trade group looking to overturn the government's "do not call" registry.

Two industry trade groups, Direct Marketing

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Association and the American Telemarketing Association, had sought to overturn the telemarketer-blocking lists set up by the Federal Trade Commission and the Federal Communications Commission, calling them a ban on constitutionally protected free speech. The DMA dropped its challenge after the U.S. Court of Appeals for the 10th Circuit in Denver upheld the law, but the ATA pressed on.

Sought other means
The ATA, which mostly represents companies that own calling centers, had called the do-not-call list a draconian remedy for problems that could have been dealt with by enforcing existing regulations or creating new rules with far less impact on speech and commerce.

Under the registry, consumers can either go to an FTC Web site or call the FTC to put their phone numbers on the call-blocking list; marketers in turn have to buy the list and can be fined for calling numbers listed on it.

Because nonprofit and political groups do not have to use the lists, the ATA had argued that the regulations amounted to an illegal distinction based on a speech content without any indication that calls by nonprofit groups are any less bothersome to consumers.

The appellate court had ruled in February that because the registry doesn't affect political or charitable calls and because there is a danger of abusive telemarketing and invasion of consumer privacy from telemarketers, the government has a right to regulate telemarketing.

Not a ban on speech
"We hold [that] the registry is narrowly tailored because it does not over-regulate protected speech," Judge David M. Ebel wrote for on behalf of the court. "The registry prohibits only telemarketing calls aimed at consumers who have affirmatively indicated that they do not want to receive such calls and for whom such calls would constitute an invasion of privacy." In other words, the registry isn't a ban on speech but a way for consumers to "opt-out" of receiving those calls.

More than 64 million phone numbers have been registered on the do-not-call list since the FTC started taking registrations in June 2003.

The ATA today said it was "disappointed."

"ATA will look to other avenues to remedy the adverse economic impact ... and the impingement of the rights of consumers and of the companies who employ telemarketing as a channel for business," it said in a news release.

ATA cites job losses
Tim Searcy, the ATA's CEO, said, "Many companies have folded and jobs have been lost due to the registry, and though the ruling today means litigation is now at an end, we are not discouraged and will continue the struggle to achieve a balance of consumer and business rights."

Lawyers and marketing group said today's decision by the Supreme Court not to hear the appeal could encourage attempts to craft similar lists. Sen. Charles Schumer, D-N.Y., has urged a "do not spam" list, which FTC officials have rejected, saying it wouldn't work.

Aides to Mr. Schumer did not immediately return calls.

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