The Direct Marketing Association decided last month not to pursue any further legal action in response to a federal appellate court ruling upholding the national do-not-call registry. But the American Teleservices Association plans to seek a review of the decision by the U.S. Supreme Court.
In a note to DMA teleservices members, DMA president and CEO H. Robert Wientzen noted that “public perception of the telephone marketing industry is extremely important, and it is the DMA’s belief that had we taken the matter to the U.S. Supreme Court, the industry’s image would have been further damaged.”
He added that the DMA’s legal advisers didn’t believe there was a significant chance of victory. “Importantly,” continued Wientzen, “they also advised us that the Supreme Court only accepts and hears 2.3% of the cases presented to it each year. While we could have appeared to be ‘fighting to the bitter end,’ it would not be a battle we’d be likely to win, and we would have more negative press to boot.
“To engage in further costly litigation when DMA members were prepared to adhere to the no-call list anyway would not be a judicious use of resources,” he added.
In contrast, Tim Searcy, the ATA’s executive director, said in a statement that his group would continue to fight for the “protection of commercial free speech guaranteed under the First Amendment.
“We believe that the rights to free speech are being unduly trampled under the guise of consumer protection, and now we’ll take our appeal to the highest level,” he said.
On Feb. 17, the U.S. Court of Appeals for the Tenth Circuit upheld the constitutionality of the national do-not-call registry. The Appeals Court decision overturned the September ruling of the U.S. District Court of Colorado, which found that the regulations relating to the DNC registry were unconstitutional. The District Court had found that the rules violated free-speech protections by barring calls from businesses, but not from charities or political calls.
“Errors of the Court of Appeals go to the heart of commercial speech protection, beyond just teleservices, and will have an adverse impact on any direct marketing channel,” said Searcy. “The 10th Circuit opinion demonstrates that commercial speech is under attack.”
According to Searcy, the ATA would like to see regulations that allow consumers to control incoming calls through company-specific do-not-call lists that require individual firms to refrain from contacting consumers who indicate they do not wish to receive calls.
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