Since then, people have registered more than 50 million phone numbers. On Oct. 1, the legislation was to go “live,” and telemarketers would be prohibited from calling numbers on the list–or face penalties of up to $11,000 per violation. Telemarketers, meanwhile, argued that their business would be hurt severely by the registry and filed lawsuits.
On Tuesday, a federal judge in Oklahoma ruled that the FTC lacked the appropriate authority to run the service. By Thursday, legislation that enables the FTC to remain in charge of the list was passed by both the House and the Senate in a matter of hours by an overwhelming majority of votes. Then, hours later, another federal judge–this time in Denver–ruled that the registry violates commercial telemarketers’ rights to free speech because it prohibits them from making calls but allows non-profit organizations to keep calling. The second ruling may be a tougher one to overturn. NEWSWEEK’s Laura Fording asked Michigan Congressman John Dingell, a Democrat, who has written and cosponsored legislation for the do-not-call registry, to weigh in on the latest events. NEWSWEEK: What has your role been in promoting the do-not-call registry?
John Dingell: I’ve worked closely with [House Energy and Commerce Committee Chairman] Billy Tauzin and others in the House, on both sides of the aisle. We’ve had overwhelming support: there were only eight no votes yesterday in the House, and only 14 absentees. The bill also passed unanimously in the Senate.
I’ve never seen Congress move so swiftly to pass legislation.
I’ve seen it a few times before, but never with the unanimity and support and lack of objection or obstruction.
Had the FTC not been given authority to enforce the registry?
Everybody who worked on the bill believes that the Oklahoma judge was very much in error. It is our view that he would have been overruled.
What do you think his reasoning was?
The judge probably interpreted the statute with extraordinary strictness. He probably should have taken a look to see what the intentions of Congress were. [Some time ago] we specifically asked the FTC, “Do you need additional authority?” And they said, “No, we do not. We have all we need.” As Billy Tauzin said, [yesterday’s legislation] ought to be called the This Time We Really Mean It Act.
Any idea why those who voted against the legislation yesterday did so?
I didn’t talk to them all, so I don’t know. I do know that Lee Terry [a Nebraska Republican] has a lot of telemarketers in his district. He made it plain that he was voting with his constituency. [There were probably] others who had telemarketers [in their districts and] possibly real conservatives who felt there was no justification for the Congress doing this. Last of all, [there were] probably folks that Terry or telemarketers had persuaded to vote with them.
Did you ever think that preventing telemarketers from calling people’s homes would be considered a violation of free speech?
Frankly, no. Free speech is, of course, always one of those things [lawyers] throw in, in this kind of case. I think [the court] interpreted free speech as more important than the right to privacy. I think here you have the right of a person to use his telephone the way he wants conflicting with some kind of questionable right of free speech of some guy who makes a lot of money annoying other people. I don’t find that persuasive.
Is the concept of commercial free speech a little different from personal free speech?
As I understand it, the court said that the Congress had passed impermissible legislation because we had intruded into the rights of free speech. We had passed legislation which put the free speech of those who were involved in polling, political activity or in charitable solicitations above commercial free speech. I don’t think this will meet the acid test. But I don’t know. Maybe when we draft the next legislation, I’ll put in a little provision seeing to it that the two judges are sheltered and don’t have to be on that list.
Is there anything Congress can do at this point?
Most emphatically. We can encourage the FTC to appeal the matter … We can again pass legislation. [Congress can base] legislation on the protection of the rights of citizens to their privacy. We can dress up the findings, I think, in a way that will take care of the concerns that the court had about constitutionality. I think that Congress will respond to this challenge.
The president has even promoted this do-not-call list.
It is interesting to note the unanimity of the House and the Senate, which goes across partisan lines. It is also remarkable how the leadership and the president have responded. And of course the ordinary citizen says, “Hooray Dingell, we’re glad that you’re protecting us against these damned calls.”
But the courts are siding with the telemarketers in this case.
The telemarketers have a right to go to court and say that [the government] is not treating them properly. Whether you like telemarketers or not, that right has to be protected. The telemarketers are able to prevail momentarily. But there are a lot of determined people on my side of the fight.
Telemarketers have said that limiting their calls could have grave economic consequences for them. In one report, the industry said some 2 million jobs might be gone by Christmas.
It is obviously going to remove from them a source of revenue. Are 2 million jobs involved? I doubt it….
Do you think the do-not-call registry will go into effect as planned on Oct. 1 or will things be held up for a while?
I think we can win either of these lawsuits on appeal. But it will take time … I saw one quote where [a telemarketer] said, “We have won.” I think they have probably spaced this thing out so that it will be hard to meet the Oct. 1 deadline. This doesn’t mean that we are not going to try to get something legislatively into place quickly. We will begin working on that. We’ve got smart people on our side, too.
