Do-Not-Call List in Limbo

Columbia professor and FindLaw columnist Michael Dorf: The Legal Status of the Don't-Call Registry.

First, a federal district judge in Oklahoma ruled that the FTC lacked authorization from Congress to establish the no-call registry. Reacting with dizzying speed, Congress overwhelmingly passed and President Bush signed new legislation clearly granting the FTC the necessary authority to maintain and enforce the list.

Before the ink was dry on the new law, however, another federal district judge, this one based in Colorado, ruled that the no-call list violates the First Amendment. If that ruling stands up on appeal, then the only remaining move for Congress would be to propose a constitutional amendment allowing the no-call list. And judging by the speed with which Congress reacted to the Oklahoma ruling, it might do just that.

But the drastic step of amending the Constitution probably won't be necessary. The district court in Colorado misread the First Amendment.

FTC chairman Timothy J. Muris testified before the Senate Committee on Commerce, Science and Transportation discussing the implications of the Denver court's ruling and the FTC's desire to implement the do-not-call list.

The FTC filed an Emergency Motion For A Stay Pending Appeal and Expedited Briefing and Argument with the Tenth Circuit.

Although the FTC list is not going into effect tomorrow, the FCC do-not-call provision remain in force and will go into effect on October 1.