The recent decisions by Oklahoma and Colorado federal courts invalidating the Federal Trade Commission's "Do Not Call List" were major victories for telemarketing companies, "but a tragedy for the rest of us," says Neil M. Richards, associate professor of law at Washington University in St. Louis.

"Even with the quick reversal of the Oklahoma decision by Congress and President Bush, the Colorado decision remains a major roadblock for the List," notes Richards. "The FTC and the Federal Communications Commission have been warned by Judge Harrington in Colorado not to go against his order, and Congress has no power to overrule the judge's decision- they cannot change the meaning of the First Amendment as interpreted by the Courts."

The Oklahoma decision said that the FTC lacked power to supervise the creation of the List, and the Colorado decision found that the List violated the telemarketers' constitutional rights to free speech.

In a 34-page opinion, the Colorado judge ruled that because the FTC allowed customers only to bar phone calls from commercial telemarketers but not charities or political parties, the list was contrary to the Supreme Court's decisions on commercial speech. The judge reasoned that because the FTC had regulated only commercial telemarketing, this violated the free speech rights of the telemarketers.

"The Court has made clear that commercial speakers are protected under the First Amendment primarily because individual consumers might want to hear the message that advertisers are conveying," notes Richards. "In other words, the reason telemarketing gets some constitutional protection is because we care about the right of consumers to hear messages, not because of the right of advertisers to send them. So in the case of the FTC's List, comprised of people who have made clear that they don't want to receive any commercial telephone messages at home, the telemarketers have no constitutional right to make the calls to the unwilling consumers. By failing to understand this basic principle, the Colorado judge botched the result - a fact that is particularly sad given that over 50 million households have signed up to be included on the FTC's list."

Neil Richards

Richards thinks that the List's prospects on appeal are not as strong as they could or should be.

"The Tenth Circuit has not been particularly receptive to consumer privacy claims against Telemarketers in the past," says Richards. "I'm hopeful, though, that either the Tenth Circuit will see the error of its ways in past cases, that it will see that this case is different from its prior case law, or that the Supreme Court will ultimately step in and resolve this issue. I'm particularly hopeful that the FTC's lawyers will be able to convince the Tenth Circuit that Judge Nottingham's decision is wrong on the law, as this result would end the case (and restore the Do-Not-Call list as soon as possible), without the Supreme Court having to get involved."

Despite the telemarketers' victories, some direct marketers have agreed to abide by the List.

"I think that the quick action by Congress and the President, coupled with the immense news coverage that this issue has received has made them very nervous," notes Richards. "The telemarketers are facing enormous public and political pressure, and are having to be very careful. I think it shows the enormous frustration that all Americans with phones — and this includes members of Congress — have with the unreasonable intrusions that telemarketing can make into their privacy."