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20 years

Two Federal Judges BLock "Do Not Call" Registry

ongress began having problems with the federal court system as early as 1793 in the case of Chisholm v. Georgia when the U.S. Supreme Court under John Marshall established the practice of "judicial review" and declared a portion of the Judiciary Act of 1789 (which defined the scope and authority of federal judges) unconstitutional. In doing so, the high court created the doctrine of implied powers by judicially legislating from the bench (a power the judiciary does not constitutionally possess). The doctrine of implied power suggested that the federal court system was superior to the State courts and, thus, the federal system had the right to review State court cases and, when necessary, overturn the State court verdicts. The federal courts were never granted that power by the Constitution. In fact, since the States created the federal court system tthe States were superior not only to tht judicial body since their only authority was to arbitrate disputes between two or more differemt States in squabbles between them. The Supreme Court was to be an unbiased arbitrator.
     When the high court overruled a move by the States to reprimand the high court for exceeding its authority, ,Congress and the States responded by passing the 11th Amendment. The 11th Amendment limited the authority of the federal court system to the scope granted it by its charter in the Constitution. Over the years the federal courts seem to have forgotten these limitations and, as the federal government expanded its own franchise by liberally interpreting Article I, Section 8 as a "power" possessed by government when it is merely a preambulatory statement of the responsibility of the federal government prior to the enumerating of the specific powers delegated to the central government, the federal courts did the same, assuming for themselves the right to "review" the decisions of State courts. The U.S. Supreme Court was empowered by the Constitution to make certain that the laws passed by the Congress did not violate the tenets of the Constitution and did not infringe upon the enumerated rights of all the people.
     In December, 2002 Congress enacted the Do Not Call Implementation Act that established a national "do not call" list for people who are tired of being harassed by telemarketers who bombard them with an estimated 104 million unwanted sales calls daily for everything from plastic pink lawn flamingoes to replacement windows, to vinyl siding and to telephonic service or email providers. Adding teeth to the measure, Congress authorized the Federal Trade Commission (under, it seems, the mistaken belief that commerce is trade, and those engaging in telemarketing sales are engaging in trade) to levy fines of up to $10,000 per infraction against telemarketers who violate the law and bother Americans who do not want to be bothered by them.
      Within 14 hours of the establishment of the registry, over 650,000 Americans had signed up. To date, over 50.6 million telemarketing-hostile Americans have signed on to the program.
     Robert Weintzen, President and CEO of a direct sales trade organization, the Direct Marketing Association, contested the law by filing a lawsuit in the U.S. District Court of Western Oklahoma. Weintzen accused the Federal Trade Commission of violating the 1st Amendment rights of telemarketers. On July 29, a second suit was filed. This one was filed by the American Teleservices Association. It was filed in the U.S. District Court of Colorado in Denver on the same 1st Amendment grounds.
     U.S. District Court Judge Lee West (a Jimmy Carter appointee) was smart enough to know that even though every American has the right of free speech, they don't have a constitutional right to make sales pitches. West also knew that the American people are not constitutionally obligated to listen to commercial telemarketers as they hype their own brands of snake oil from telemarketing sweat shops or from private network marketing ventures from their homes. West even acknowledged that Americans have a right not to be bothered by them.
Even though Weintzen filed his lawsuit as a 1st Amendment issue, West said the only issue before the court was whether or not the FTC had the authority to promulgate a national "do not call" registry. He decided it did not.
     Under the Constitution there is a simple separation of powers between the Executive, Judicial and Legislative branches. Congress makes the laws and the Executive branch, at its discretion, implements and administrates them. Congress clearly understood that telemarketers engage in commerce (trade worth over $100 billion per year). Because "selling" is trade, not commerce, Congress rightfully assigned the authority to monitor that "commerce" to the Federal "Trade" Commission. Conversely, the Federal Communications Commission regulates the lawful transmission of all electronic communications over the airwaves and controls the licensing of all radio and television stations, short wave, etc. It also has prosecutorial jurisdiction over the transmission of pornography via the electronic information superhighway.
     Both the FTC and the FCC are subsets of the Executive branch. Constitutionally, it is the Executive Branch as a whole entity that is charged with the responsibility of implementing and administering the laws created by Congress. There is no constitutional distinction that would allow a U.S. District Court Judge to vacate a lawful act of Congress because the judge felt Congress had deferred administrative authority to the wrong subset within the Executive Branch. That is an argument that would have to be addressed by a higher court. The judge was wrong.
     Congress stepped in a day after the U.S. District Court of Western Oklahoma made its ruling and "corrected" what Judge West perceived as the problem. At the same time, the 10th Circuit Court of Appeals was preparing to strike down Judge West's decision. In the view of the 10th Circuit, once Congress gave the Executive branch authority to create the “Do Not Call” Registry, it possessed that authority. On Thursday, September 25 the U.S. House of Representatives voted 412 to 8 to, very succinctly and without any ambiguity, empower the FTC to establish and administrate the national "Do Not Call" Registry. The Senate concurred by a vote of 95-0. Nineteen Congressmen and Senators abstained from voting. Eight Congressmen (5 Republicans and 3 Democrats) voted against the measure. Those casting their votes against the establishment of the registry were: Rob Bishop [R-UT], Chris Cannon [R-UT], Jeff Flake [R-AZ], Kendall Meek [D-FL], Ron Paul [R-TX], Tim Ryan [D-OH], Ted Strickland [D-OH], Lee Terry [R-NE].
     Almost before the ink was dry on President George W. Bush's signature on the new bill, a "Daddy-Bush" judicial appointee, U.S. District Court Judge Edward Nottingham of the Colorado District blocked the registry on 1st Amendment grounds.
     Nottingham's decision, which will likewise be overturned by the 10th Circuit or the U.S. Supreme Court, was based on the notion that the "Do Not Call Implementation Act" discriminated against sales people by prohibiting commercial telemarketers from bombarding people with sales pitches for widgets and whatnots while telemarketers for charities like the "Al Qaeda Moderates for an American-Free America" could continue to harass people for contributions. Because it was viewed as "selective discrimination," Nottingham decided it was unconstitutional.
     "There is no doubt," Nottingham said, "that unwanted calls seeking charitable contributions are as invasive to the privacy of someone sitting down to dinner at home as unwanted calls from commercial telemarketers...The FTC has imposed a content-based limitation on what the consumer may ban from his home, thereby entangling the government in deciding what speech the consumer should hear."
     It goes without saying that the consumer would rather hear no sales pitches from anyone--not commercial nor charity--particularly when they are sitting down to eat dinner. However, Nottingham was grasping at legal straws since he does not argue the rights of free speech here, but the error of selective speech. His decision implies that if you ban both commercial and charitable sales hucksters, you have not violated anyone's 1st Amendment rights--but by allowing those seeking contributions for worthwhile charities, you have violated the free "sales pitch" rights of the commercial telemarketer selling aluminum siding. It is important for every American--judges included--to realize that the "free speech" rights guaranteed to Americans by the 1st Amendment are political and religious speech rights not sales pitch rights..
     Pornographers and smut peddlers have no guaranteed "free speech" right. Nor, does the telemarketer who thinks he or she has a legal right to bother you during the evening after you've spent a hard day doing whatever it is you do to earn a living. Ironically, what we have in the United States today is an unfortunate reversal of constitutional fortunes under the 1st Amendment. Politicians and the courts go out of their way to manipulate the meaning of the 1st Amendment to protect the rights of deviants to promote their abhorrent philosophies and lifestyles as they do everything humanly possible to deny traditional Americans their constitutional right to speak out against unconstitutional and many times unfathomable political policies and practices that have recast America's republic in an epistemic, oligarchic socialist democracy. (The preceding doesn't have much to do with the subject at hand, but I thought I'd throw it in for free.)
     It is important for America's telemarketers to realize that Judge West’s decision (already overturned by the 10th Circuit) affected only telemarketers and consumers in the judicial district covered by West’s court. Likewise, the decision by Judge Nottingham affects only the consumers and telemarketers living in his judicial district. Telemarketers living in the area covered by the 10th Circuit can safely harass consumers who live within the boundary of the 10th Circuit--but they are still subject to the $11,000 fine per infraction for any calls they make to consumers outside the 10th Circuit's boundaries. And, hopefully, the FTC plans to rigidly enforce the Do Not Call Registry. By the way, any American who has not signed on, may still do so by calling (888) 382-1222 or by visiting the "Do Not Call" website at www.donotcall.gov.




Just Say No
Copyright 2009 Jon Christian Ryter.
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