A three-judge appeals panel is expected to rule late this month or in early January on the legality of the Federal Trade Commission's national do-not-call list.
The Direct Marketing Association and other trade groups want the 10th U.S. Circuit Court of Appeals in Tulsa, OK, to uphold decisions by lower courts that found the registry unconstitutional.
The groups argued in a hearing Nov. 10 that the DNC list stalls competition and commercial free speech rights by allowing calls from nonprofits but not from businesses.
But government lawyers countered that consumers have a right to be left alone, and that the FTC hasn't eliminated commercial free speech.
“The government is saying that the DNC is narrowly tailored to give consumers what they want,” said Rob Jackson, attorney for the law firm Reed Smith LLP, Washington, in an interview. “There is a consumer's right to privacy. [They are] not to be bothered at home.”
The government also noted that marketers can still call consumers with whom they have an existing business relationship, Jackson added.
Consumers find calls from companies much more intrusive than calls from charities, the government continued.
The government also presented evidence that a do-not-call list is warranted because telemarketers have not followed rules that allow consumers to prevent specific telemarketers from calling their homes.
“The situation is we had a limited rule and telemarketers didn't follow it, and so we had to put in a more extreme rule,” Jackson said.
The appeals court has consolidated all the lawsuits filed by the telemarketing industry against the government. The court allowed the registry to go into effect Oct. 1 pending outcome of this appeal.
More than 50 million consumers have signed up to bar telemarketing calls to their homes.
