Starting in late September, the federal courts completely screwed up the law on privacy and telemarketing, deciding that the Federal Trade Commission’s “Do Not Call” registry was, first, unauthorized, and second, in violation of the First Amendment. Today the 10th Circuit stayed those decisions, holding that “there is a substantial likelihood that the FTC will be able to show … that the list directly advances the government’s substantial interest and is narrowly tailored.” [yahoonews.com]. Finally, a little sanity is brought to the law.

The Washington Post calls the situation “Do-Not-Call Recalled,” which is cute but a little misleading. What’s been recalled are the asinine decisions by decrepit old judges hand-picked by the Direct Marketing Association to assure stupid rulings favoring local calling center business over the privacy rights of consumers nationwide. DMA says the court of appeals “appears to allow” the FTC to proceed with its plans. So, these guys can’t read either!! What “appears” true is that the telemarketers still refuse to admit that consumers hate them and that their entire business depends on being so obnoxious and misleading that people are bullied into submission. The courts have closed them down, at last.

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The legal reasoning, if you can call it that, about the Do Not Call registry is really getting out of hand. Late yesterday another federal court, this time in Denver, held that the FTC’s actions were invalid and blocked the list from going into effect. [msnbc.com]. The Denver court based its judgment on the First Amendment, concluding that “the FTC’s do-not-call registry does not materially advance its interest in protecting privacy or curbing abusive telemarketing practices.”

Beam me up, Scotty, there’s no intelligent life on this planet.

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In an update to yesterday’s post about the FTC’s Do Not Call registry, this afternoon the House of Representative voted 412-8 to give the FTC express power to run the list, something Judge Lee Roy West of Oklahoma said they “clearly” had not done before. According to bill sponor Rep. Billy Tauzin, “We should probably call the bill the ‘This Time We Really Mean It Act’ to cure any myopia in the judicial branch.” Hear, hear!

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Everyone was a little bit calmer when the Federal Trade Commission launched its national “Do Not Call” registry to foil telemarketers last August. While it’s certainly not a panacea, it is a step in the right direction. Now, a 74-year old semi-retired federal judge in Oklahoma, goosed by the Direct Marketing Association, has held the FTC’s actions invalid, just days before the registry was to go into operation. Fool.com: Dinner, Interrupted.

It’s this kind of muddled logic that gives we lawyers such a bad reputation. Congress appropriated money to fund the FTC list and the agency has long had broad powers over both “deceptive” trade practices and “abusive” telephone solicitations. Yet the court held that the FTC did not have the power to ban unauthorized telephone solicitations because the Federal Communications Commission rejected that option more than 10 years ago, saying that because Congress in 1991 gave the FCC power to make a do-not-call list, the FTC could not do so. Nonetheless, it never addressed whether unauthorized calls can be declared “abusive” or whether the FTC’s general powers to engage in consumer protection regulation were sufficient — without regard to specific legislation on telephone solicitation — to support its actions. Read the opinion yourself and see.

The court’s analysis is legal hair splitting at its worst, a pure charade. As the FTC said in response,

“Congress passed the Do Not Call Implementation Act, which authorized the FTC to collect fees from sellers and telemarketers to ‘implement and enforce the provisions relating to the do-not-call registry.’ . . . This decision is clearly incorrect. We will seek every recourse to give American consumers a choice to stop unwanted telemarketing calls.”

That’s right. Telemarketing is a intrusive, costly and annoying, and the government has a right to stop it. The government here has decided to do so, with specific Congressional approval and funding. Judge Lee Roy West, a good old boy from Ada, Oklahomo who assumed “senior” status a decade ago, should find better things to do with his time. Clarity of thought is not a virtue of the feeble-minded elderly. Maybe we should all call Judge West’s house during dinner?

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• Rational Thinking On Telemarketing
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