Wednesday, October 08, 2003

The Courts: Game On!

I promised to refrain from further Do Not Call comments until the U.S. Courts of Appeals for the Tenth Circuit had something to say. Now the Court has said something, issuing a stay that allows the FTC to put the registry into effect.

I have no great objection to the stay, even though I do not believe any irreperable harm would result by delaying enforcement of the registry until the Court of Appeals decides the merits. The stay almost certainly means the court will overturn the Denver district court's ruling that the registry violates the First Amendment. In a perverse sense, this is what should happen. The district court found the FTC unfairly singled-out commercial telemarketers while exempting religious and political telemarketers. This makes it sound like the FTC is playing favorites. But nothing could be further from the truth. If the FTC thought it could get away with subjecting all telemarketers to the DNC registry, it would have. The Commission traditionally views their jurisdiction and power as unlimited. But in this case, Supreme Court precedents clearly segregate "commercial" and "non-commercial" speech into separate constitutional categories. The FTC chose not to risk serious challenge to the Do Not Call registry by playing along with the Court's categorization. Accordingly, I would not expect the Tenth Circuit to punish the FTC for doing what the judiciary essentially instructed it to do.

CAC has long advocated abandoning the judicial commercial speech doctrine, but the Do Not Call case is not the proper forum for addressing that issue.

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