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Do-not-call registry faces tougher challenge

Second judge blocks list, citing free speech concerns

U.S. Rep. Billy Tauzin:
U.S. Rep. Billy Tauzin: "Fifty million Americans can't be wrong."

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Federal Trade Commission (FTC)

WASHINGTON (CNN) -- Despite a judge's ruling that declares a national do-not-call list unconstitutional, President Bush plans a signing next week of a bill giving the Federal Trade Commission explicit authority to create a national "do-not-call" registry for telemarketers, the White House said Friday.

Thursdays' ruling by a federal judge in Colorado places the fate of the popular list in limbo. The decision was slammed Friday by the FTC chairman, who vowed to take "every recourse to give American consumers a choice to stop unwanted telemarketing calls."

The judge's ruling came on a day when both houses of Congress reacted swiftly to another judge's court order that the FTC needed a legislative mandate to create the wildly popular list. The House of Representatives and Senate both voted overwhelmingly Thursday to give the FTC explicit authority to create the registry.

In his decision on Thursday, U.S. District Judge Edward Nottingham blocked the list based on telemarketers' free speech rights.

The do-not-call list applies to telemarketers but not to nonprofit organizations, politicians and pollsters.

Nottingham found that the registry "does not materially advance its interest in protecting privacy or curbing abusive telemarketing practices."

"The registry creates a burden on one type of speech based solely on its content, without a logical, coherent privacy-based or prevention-of-abuse-based reason supporting the disparate treatment of different categories of speech," Nottingham ruled.

Nottingham's order resulted from a suit filed in Colorado by telemarketing businesses in that state. It was unrelated to the claim and order issued Tuesday in Oklahoma by Judge Lee R. West, which prompted this week's congressional action.

West determined that the FTC had overstepped its bounds in creating such a registry. In response, the House on Thursday voted 412-8 for such a mandate, and the Senate passed it 95-0.

"Fifty million Americans can't be wrong," U.S. Rep. Billy Tauzin, R-Louisiana, said Wednesday, referring to the number of phone numbers that people have signed up to block the unwanted solicitations.

FTC Chairman Timothy J. Muris vowed Friday to continue the fight for the registry.

"This court's reasoning [in Colorado], if adopted elsewhere, would effectively cripple virtually every do-not-call registry in the United States, whether state or federal. I do not believe that our Constitution dictates such an illogical result," a statement from Muris read. "We will seek every recourse to give American consumers a choice to stop unwanted telemarketing calls."

The Federal Communications Commission also said Friday it would support the FTC.

"The will of the people, the will of the Congress and of the administration could not be more clear. Fifty million Americans have, thus far, asked not to be bothered by unwanted calls," FCC Chairman Michael K. Powell said in a statement.

"We strongly believe the do-not-call list withstands constitutional scrutiny. The FCC will join the FTC in taking every appropriate legal measure to ensure the will of the people is vindicated."

In June, the federal government launched the national do-not-call registry aimed at stopping most telemarketing phone calls to people who regard the sales pitches as invasive and want them blocked. More than 730,000 people registered the first day.

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