Thursday, September 25, 2003

FTC News: Do Not Call Backers Rally

Many people are unhappy with Judge Lee West's ruling that the FTC exceeded its authority in creating the Do Not Call registry. A number of Internet sites have posted the phone numbers for Judge West's chambers in an effort to encourage telemarketing-like harassment of the good judge. On one level this is silly, but it also reveals a very disturbing theme. I've read more than one comment, from a number of nominally conservative and libertarian folks, suggesting that Judge West's ruling should be overturned because...well, just because they really, really hate telemarketing and want a Do Not Call registry. The fact that Judge West persuasively argued the FTC had no authority to implement such a program is seen as a trivial detail, a judicial obstacle thwarting the people's demands.

Give the FTC credit. Unlike the always-unpopular Justice Department, the FTC knows how to act popular and make friends. They knew the Do Not Call registry exceeded their authority, but they also knew that enough people would like the idea to ignore that trivial detail. A classic example of the ends justifying the means. This, in fact, is the FTC's modus operandi. They justify all sorts of unconstitutional and illegal activities--such as the persecution of physicians--on grounds that it "benefits consumers," as if invoking such a rhetorically noble process gives one license to steal. By and large, it does: Congress rarely exercises any oversight over the FTC, preferring to accept the dangerous myth that everything the Commission does, it does for the sake of helping consumers.

My biggest objection to the idea of a Do Not Call registry is that the FTC is running it. There are rational arguments in favor of Congress creating such a registry, and I would not condemn such congressional action as per se unconstitutional. But the FTC has demonstrated a unique unwillingness to follow the Constitution and the law, especially under the current leadership. Handing them a broad weapon to use against telemarketing firms would be like handing a blow torch to a serial arsonist. If Judge West is affirmed and Congress decides a Do Not Call registry is ultimately necessary, they should find another agency within the Executive Branch to oversee it, such as the Commerce Department.

UPDATE: The FTC has appealed Judge West's order and asked for a temporary stay pending disposition by the Tenth Circuit. I would not grant the stay. This is a case where the status quo--the registry wasn't scheduled to take legal effect until October 1--should be maintained during appeal. The FTC will suffer no irreparable harm if they're forced to wait a few weeks to begin prosecuting rogue telemarketers.

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