DO NOT DELAY

Can 50 million Americans be denied a more peaceful supper hour after placing their names on a federal do-not-call registry? Don’t bet on it, even if the U.S. District Court in Colorado says the registry, set to begin today, violates the First Amendment.

The court concluded that the Federal Trade Commission, “by exempting charitable solicitors from the amended rules’ do-not-call registry, has imposed a content-based limitation on what the consumer may ban from his home. … The mechanism purportedly created by the FTC to effectuate consumer choice instead influences consumer choice, thereby entangling the government in deciding what speech consumers should hear. This entanglement creates a regulatory burden on commercial speech.”

The concern of a district court in Oklahoma that the FTC lacked jurisdiction was cleared up by Congress last week in a vote swift enough to let voters know their representatives in Congress have heard them. All four members of Maine’s delegation supported that legislation. In addition, the Federal Communications Commission has said it would enforce the penalties associated with the registry because the FTC was prevented from doing so by the court.

The First Amendment issue is more difficult. Congress created the exemption for charities because it recognized that it was a valuable way for these organizations to carry out social goods. Taking away their telephones threatens to diminish their missions. Congress now has the option of waiting for a higher court to rule on the issue – deciding whether the pitch from the local youth organization really is commercial speech. Or it could lift the exemption on charities and, not incidentally, political campaigns. A third way would be to create a second list that prohibited all solicitations and give people the option of signing up under the original list or the expanded one.

No one needs to tell Maine about the number of telemarketing jobs threatened by the registry. But these solicitations have been an annoyance for years, and the companies that profit by them have not done nearly enough to make them less of an interruption. Telemarketers stick to scripts, don’t take an initial “No” for an answer and are required to assert so much information so quickly that hardly anyone could make a rational judgment about the product being offered. Couldn’t the creative minds that spawned this industry devise some more entertaining way to make their phone calls?

The registry is hugely popular and will go forward, perhaps right away, perhaps after some delay, in some manner. Were a constitutional amendment on the issue to be proposed, it would probably pass. Let’s hope it doesn’t come to that.