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Published: Monday, 9/29/2003

A little legal limbo

Americans should have expected it. Any government initiative as popular as the no-call list designed to free individuals from telemarketers was bound to get a lynx-eyed look from the judicial branch.

Not once but twice in recent days the federal courts have struck down the national no-call registry which was supposed to become effective this coming Wednesday - once on largely jurisdictional grounds and once on free-speech issues.

The public has a legitimate concern about privacy - in this case, to be blessedly free of annoying telemarketing calls. However, legal challenges were inevitable and to an extent understandable.

U.S. District Judge Edward W. Nottingham ruled in Denver that the registry, a list of telephone numbers telemarketers could no longer call, is unconstitutional because it provided an exception for telemarketers working on behalf of charitable causes.

That, Judge Nottingham said, entangles “the government in deciding what speech consumers should hear.”

Days earlier, U.S. District Judge Lee West in Oklahoma City ruled that the Federal Trade Commission does not have the authority to create a National Do Not Call Registry because that authority had been granted by Congress to the Federal Communications Commission.

That ruling prompted a flurry of activity in Congress, which quickly passed legislation empowering the FTC, but Judge Nottingham's decision put the registry back on hold once again.

Distinctions have sometimes been made between so-called commercial speech and other kinds of speech, so the Oklahoma judge's ruling, along with the Denver decision, may slow down for some time any further progress toward implementing a do-not-call registry.

The issue poses a clash between two rights - the right to pitch one's ideas or wares and the right not to listen.

Meanwhile, telephone callers may have to use Caller ID, allow their calls to be picked up by voice mail or answering machines, slam down the receiver, politely or impolitely refuse (the degree of impoliteness often determined by the persistence of the telemarketer), let the pitchman talk without replying (if there is nobody to listen to the message, has anyone communicated?), or cave in and buy the product.

It is probably the inconvenient timing of sales calls rather than the quantity of calls that irritates people. Some people have purchased electronic “zappers” for their phones which block computer-generated sales calls.

Even so, a lot of people apparently do buy from telemarketers or vendors would not utilize telemarketing so much. Whether the government owes this much protection to residential phone owners is a question on which people can differ and about which judges may have no better answers than anyone else.

The fact that the registry grew to 50 million phone numbers - which translates to a much larger number of human beings - within a relatively short period of time certainly must send some kind of message to telemarketers.

The message is this: Americans value their privacy highly.



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