No-Call: On Hold

For

loony public spectacle, the on-again-off-again effort to shield Americans from unwanted telemarketing pitches rivals the California recall. The Federal Trade Commission (FTC) expected to activate its do-not-call list, which is up to 50 million phone numbers, on Oct. 1. But on Tuesday an Oklahoma federal judge said the FTC lacked such authority. Politicians heard the ringing in their ears. By Thursday — faster than any bill had cleared the Capitol since the 1941 declaration of war on Japan — Congress empowered the FTC to deploy its list.

Minutes after the Senate voted, however, a second federal judge, in Denver, ruled that the no-call registry violated the First Amendment by limiting only commercial speech, leaving alone charities, pollsters and politicians. "Unpopular speech is the only kind of speech that ever needs protection," says Robert Corn-Revere, a Washington attorney who represents the industry. The Direct Marketing Association (D.M.A.) argues that a list of 60 million numbers would halve call volume, cause hundreds of thousands of job losses and lead to more jobs moving to less expensive work forces in Asia. Consumer advocates warn against overprotecting commercial speech but criticized the tele-vigilantes who bombarded the courthouses with phone calls.

The FTC indicated on Friday that it would appeal the Denver ruling. The D.M.A., meanwhile, has tried some belated image repair by encouraging its members to honor the FTC list voluntarily. More than two dozen states still maintain their own lists. On Friday, an appeals-court victory for the Federal Communications Commission in a similar suit encouraged the FTC to believe it will ultimately win in court. Either way, the telemarketers won't easily shrug off public ire. "All the telemarketers will have done is increase [the list's] size by 50%," FTC chairman Timothy Muris told TIME. But the fight could take months — at least — as the courts weigh consumer-privacy claims against constitutional protections on commercial speech. For now, do-not-call remains on hold.