Rep. W. J. "Billy" Tauzin, R-La., indicated he still had some questions about whether marketers should pay the entire cost of the list, but was amenable to giving $16 million of initial funding to let the FTC implement the rule in supplemental appropriations bills Congress will pass at month's end.
The comments came after the committee heard FTC Chairman Tim Muris warn that getting funding by month's end was essential if the list was to be implemented before October.
Rep. Tauzin said his biggest concern was whether Congress should also give the FTC clearer legal authority to implement the list. He also said he had questions on some security and long-term funding issues.
"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. "We are told that there are lawsuits likely against the FTC on the basis that its authority is limited to abusive and coercive type calls."
A number of congressmen of both parties commented during Mr. Muris' briefing. None opposed the list and several suggested the only problem with it was it didn't include calls by politicians.
Rep. Cliff Stearns, R-Fla., chairman of the committee's Commerce, Trade and Consumer Protection panel, said some questions remained regarding harmonization of the FTC list with those of state governments and with one the Federal Communications Commission has proposed. Mr. Muris said the FCC proposal essentially requires companies under its jurisdiction to use the FTC list and isn't really intended to be a separate list.
The comments came as the Direct Marketing Association, which represents marketers, softened its position opposing a government mandated list, a softening that would put it in conflict with the American Teleservices Association, which represents calling companies.
`go with reality'
DMA Senior VP Jerry Cerasale last week suggested that with 28 state laws and proposals from both the FTC and FCC, the popularity of the concept is clear. DMA, he said, was becoming more concerned about problems that would stem from having to use multiple lists rather than a single mandated list.
"You go with reality," he said. "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 group supported a government list mandated by the FCC rather than the FTC, because the FCC has authority over a broader range of marketers. An FTC list alone wouldn't apply to some marketers, such as phone companies in some circumstances, leading to consumers still getting telemarketing calls and "a black eye for direct marketers." He denied marketers were hoping for a better deal under FCC Chairman Michael Powell.
A DMA spokesman, however, later said that Mr. Cerasale misspoke and the DMA still thinks the DMA's own voluntary list is sufficient and "the jury is out" on a mandated list.
Telemarketers have discussed a lawsuit challenging the list, arguing both that their calls aren't fraudulent and the FTC only has legal authority over fraud or unfair practices. Telemarketers also believe the list amounts to a ban on marketers' speech and violates the First Amendment.
Matt Mattingley, director of government affairs, American Teleservices Association, said his group is likely to challenge the list, even if Congress were to give the FTC authority to create one.
"Our objection is with the concept of a blanket `do-not-call' list," he said, adding the foundation of any legal challenge would question the FTC's authority to implement a do-not-call list and whether the list was constitutional.
Mr. Muris said that the FTC is hopeful that the $16 million would permit it to create the Web site and the procedures for running the list, with consumer sign-up in June and marketers able to start using the list in August. The $16 million represents part of the upfront cost, but marketers would eventually pay the cost through fees to use the list.