Two recently issued federal court decisions have cast doubt as to whether the national do-not-call registry will go into effect as scheduled on October 1, 2003. On September 23, 2003, the United States District Court for the Western District of Oklahoma ruled that those provisions of the Telemarketing Sales Rule, 16 C.F.R. §§ 310.1 et seq., that provide for a national do-not-call registry are invalid because Congress granted authority to the Federal Communications Commission (FCC), and not the Federal Trade Commission (FTC), to promulgate the do-not-call registry. U.S. Security v. FTC, No. CIV-03-122-W (W.D. Okla. Sept. 23, 2003). In an attempt to save the registry, the FTC filed an appeal with the United States Court of Appeals for the 10th Circuit. In addition, both the House and Senate quickly and overwhelmingly passed legislation ratifying the authority of the FTC to establish the national registry, which the President is expected to sign Monday, September 29th. See H.R. 3161, 108th Cong., § 1 (2003). These attempts to save the registry may not be enough, however, because on September 25, 2003, the United States District Court for the District of Colorado issued a ruling enjoining the FTC from enforcing the national registry on First Amendment grounds. According to the court, the national registry violates the First Amendment to the United States Constitution because it treats commercial calls differently than other types of calls (e.g., calls seeking charitable contributions), and thus fails to materially advance the substantial government interest of protecting privacy or curbing abusive telemarketing practices. Mainstream Marketing Services, Inc. v. FTC, No. 03 N 0184 (D. Colo. Sept. 25, 2003). If it stands, this decision not only calls into question the validity of the national registry, but also the numerous state do-not-call registries that restrict unsolicited telemarketing calls. It is unclear whether the FTC may move forward with the registry in states not directly affected by the district court rulings. FTC chairman, Timothy Muris, has indicated that the agency will fight the decision.

Mike Tomkies and Chuck Gall