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S. HRG. 108–982 

THE DO-NOT-CALL REGISTRY 

HEARING 

BEFORE THE

COMMITTEE ON COMMERCE, 

SCIENCE, AND TRANSPORTATION 

UNITED STATES SENATE 

ONE HUNDRED EIGHTH CONGRESS 

FIRST SESSION 

SEPTEMBER 30, 2003 

Printed for the use of the Committee on Commerce, Science, and Transportation 

( 

(II) 

SENATE COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION 

ONE HUNDRED EIGHTH CONGRESS 

FIRST SESSION 

JOHN MCCAIN, Arizona, Chairman 

TED STEVENS, Alaska 

CONRAD BURNS, Montana 

TRENT LOTT, Mississippi 

KAY BAILEY HUTCHISON, Texas 

OLYMPIA J. SNOWE, Maine 

SAM BROWNBACK, Kansas 

GORDON H. SMITH, Oregon 

PETER G. FITZGERALD, Illinois 

JOHN ENSIGN, Nevada 

GEORGE ALLEN, Virginia 

JOHN E. SUNUNU, New Hampshire 

ERNEST F. HOLLINGS, South Carolina, 

Ranking 

DANIEL K. INOUYE, Hawaii 

JOHN D. ROCKEFELLER IV, West Virginia 

JOHN F. KERRY, Massachusetts 

JOHN B. BREAUX, Louisiana 

BYRON L. DORGAN, North Dakota 

RON WYDEN, Oregon 

BARBARA BOXER, California 

BILL NELSON, Florida 

MARIA CANTWELL, Washington 

FRANK R. LAUTENBERG, New Jersey 

JEANNE BUMPUS, Republican Staff Director and General Counsel 

ROBERT W. CHAMBERLIN, Republican Chief Counsel 

KEVIN D. KAYES, Democratic Staff Director and Chief Counsel 

GREGG ELIAS, Democratic General Counsel 

(III) 

C O N T E N T S 

Page 

Hearing held on September 30, 2003 ..................................................................... 1 

Statement of Senator Allen ..................................................................................... 5 

Statement of Senator Burns ................................................................................... 18 

Prepared statement .......................................................................................... 18 

Statement of Senator Ensign .................................................................................. 24 

Statement of Senator Lautenberg .......................................................................... 3 

Prepared statement .......................................................................................... 4 

Statement of Senator McCain ................................................................................. 1 

Statement of Senator Nelson .................................................................................. 3 

Statement of Senator Sununu ................................................................................ 4 

Statement of Senator Wyden .................................................................................. 2 

WITNESSES

Cerasale, Jerry, Senior Vice President, The Direct Marketing Association, 

Inc. ......................................................................................................................... 36 

Prepared statement .......................................................................................... 37 

Guest, James, President, Consumers Union ......................................................... 44 

Prepared statement .......................................................................................... 46 

Hammond, Lee, Member, Board of Directors, American Association of Retired 

Persons (AARP) .................................................................................................... 47 

Prepared statement .......................................................................................... 49 

Muris, Hon. Timothy, Chairman, Federal Trade Commission ............................ 6 

Prepared statement .......................................................................................... 9 

Powell, Hon. Michael K., Chairman, Federal Communications Commission ..... 13 

Prepared statement .......................................................................................... 14 

Searcy, Tim, Executive Director, American Teleservices Association (ATA) ...... 39 

Prepared statement .......................................................................................... 41 

Smolla, Rodney A., Dean, University of Richmond School of Law ...................... 27 

Prepared statement .......................................................................................... 30 

APPENDIX

Snowe, Hon. Olympia J., U.S. Senator from Maine, prepared statement .......... 57 

(1) 

THE DO-NOT-CALL REGISTRY 

TUESDAY, SEPTEMBER 30, 2003 

U.S. SENATE, COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION, Washington, DC. 

The Committee met, pursuant to notice, at 10:10 a.m. in room 

SR–253, Russell Senate Office Building, Hon. John McCain, Chairman of the Committee, presiding. 

OPENING STATEMENT OF HON. JOHN MCCAIN, 

U.S. SENATOR FROM ARIZONA 

The CHAIRMAN. Good morning, and I would, of course, as always, 

allow my colleagues to make opening statements. I would strongly 

request that they make them brief, as I will make my opening 

statement brief. We have a lot of ground to cover and a lot of 

things are changing almost as we speak. And I want to especially 

thank our first two witnesses, Chairman Muris and Chairman 

Powell, for taking the time to visit with us this morning. 

I know of no event, perhaps spamming is one of these issues that 

affect millions and millions of Americans, but this issue attracted 

the attention, the ire of millions of Americans as well. And I want 

to thank both chairmen for their rapid response to an ever-changing situation dictated by court decisions. And we’ve gone in a very 

short period of time from what we thought was an issue that was 

largely resolved to one which is somewhat confusing to say the 

least. And that’s why not only do we—like to hear from both chairmen as to what they intend to do, but what they think the various 

scenarios that can take place. 

For example, I understand that the Tenth Circuit court has been 

asked to stay this decision, and later on we’ll have witnesses that 

will give a, perhaps a constitutional view of this issue. Having said 

that, I want to thank them and remind my colleagues that just a 

week ago a decision by a Federal court in Oklahoma started a dramatic series of events that have called into question the implementation of a national do-not-call registry, which is scheduled to go 

into effect tomorrow. The Oklahoma court ruled that Congress had 

not granted the Federal Trade Commission authority to create the 

registry. With almost unprecedented speed, Congress passed a bill 

ratifying the FTC’s authority, and yesterday the President signed 

that measure into law. 

Regrettably, however, the registry, for which 50 million phone 

numbers have been signed up, is still in legal limbo. Last Thursday 

a Federal district court in Colorado found that the FTC’s do-notcall registry was unconstitutional. The court determined that the 

2 

registry violated the First Amendment because it allowed consumers to keep commercial telemarketers out of their homes while 

enabling political and charitable telemarketers to operate as usual. 

We certainly wouldn’t ever want to prevent political operatives 

from operating as usual. Although the FTC’s request to stay this 

order was denied yesterday by the same court, the FTC has appealed to the Tenth Circuit Court of Appeals. 

The Federal Communications Commission has also weighed in by 

asserting its authority to enforce the do-not-call registry. Just when 

it appeared that the registry would be stopped in its track, on Friday a Tenth Circuit decision allowed the FCC to move with its implementation. As it stands, the FCC, not the FTC, appears to have 

the exclusive right to enforce the registry. The current legal frenzy 

surrounding the registry has left American consumers in the dark 

about what to expect tomorrow after the registry opens for business. Before these legal challenges it appeared that October 1, 

2003, would mark the day when unsolicited telemarketing calls 

would finally cease. Now it is unclear whether American families 

gathering at the dinner table will be bombarded tomorrow with the 

same unwanted calls that they receive today. 

As anyone who has kept up with the news over the past week 

knows, a concept that to most people is as simple as ‘‘do not call 

me’’ has become tremendously complex. So today we’ve asked various interested parties and experts to join us in taking a step back 

to survey the current status of the do-not-call registry, how we got 

here and the prospects for the registry in the appellate process. I 

want to thank again chairmen Muris and Powell for joining us 

today and for their extraordinary efforts to respond to the public 

demand for this registry. Chairman Muris and the FTC have 

shown an unflagging commitment to adopting and defending a national do-not-call list, and I believe that will prevail in the end. In 

the meantime, Chairman Powell and the FTC are to be commended 

for stepping into the breach to cover certain telemarketers outside 

of the FTC’s reach and begin enforcing the law as scheduled. 

I look forward to an informative hearing this morning. I thank 

all the witnesses. I received a call from my wife an hour ago who 

said last night she received six telemarketing calls, four during 

dinner. So I hope you will take and consider my own domestic 

problems as we proceed here today. 

[Laughter.] 

The CHAIRMAN. Senator Wyden. 

STATEMENT OF HON. RON WYDEN, 

U.S. SENATOR FROM OREGON 

Senator WYDEN. Thank you, Mr. Chairman. I just want to make 

two points here very briefly. As you’ve stated, the public wants the 

right to be able to say no to incessant interruptions at home, and 

instead 50 million Americans are being taken on a ride on a legal 

roller coaster, where it’s not clear where it’s going to end. And I 

think the first question we want to get out today is why does it 

have to be so hard and so complicated to put in place a process that 

lets the public say no? And hopefully we will hear from our two 

witnesses. I share your view about their very useful work, about 

3 

what it’s going to take, so that this doesn’t turn into a multi-year 

process of legal petitions and appeals. 

Second point that I’d like to make, Mr. Chairman, is that some 

in the telemarketing industry have said that legal opinion or no 

legal opinion, they’d rather not call people whose names are on the 

list, but that means that the industry is going to need to be able 

to get the list from the Federal Trade Commission. But apparently, 

some parties have argued in court that if the Federal Trade Commission shares the list, it should be held in contempt of court. Obviously, if the Federal Trade Commission can’t share the list then 

even voluntary compliance becomes impossible. 

So I hope that we will hear today from the industry that they 

are willing to work with the two agencies that are here today, the 

Federal Trade Commission and the Federal Communications Commission, to make sure that the telemarketers can get the list from 

the Federal Trade Commission. Again, this goes to the point of 

whether there is just going to be Byzantine legal maneuvering or 

is there going to be an effort to release this list to those who request it. I think the Federal Trade Commission is doing the right 

thing in this area and I hope that we will hear from the industry 

that they are willing to meet the agency half-way and I look forward to hearing from our witnesses. 

Senator ALLEN [presiding]. Thank you, Senator Wyden. Next 

we’ll hear from Senator Nelson. If members can make their statements as short as practicable so that we can hear from our witnesses, we’d appreciate it. Senator Nelson? 

STATEMENT OF HON. BILL NELSON, 

U.S. SENATOR FROM FLORIDA 

Senator NELSON. Thank you, Mr. Chairman. Over the past few 

months, an incredible 3 million people in my state responded by 

saying that they wanted to be let alone. They just don’t want this 

barrage of unwanted calls which is an invasion of their personal 

and private space. The courts’ decision to enjoin the enforcement 

of this regulation on First Amendment grounds may be well-meaning, but it’s simply wrong. Would this court, for example, grant 

sign-waving protestors a constitutional right to walk freely and 

uninvited into the family home and circle the dinner table? Yet 

with this decision, the courts have granted marketers the right to 

do the same thing even though they haven’t been invited. 

And, Mr. Chairman, I’ll close by one of the great respected jurists 

in American history, Justice Louis Brandeis. I want to quote something that he said regarding the framers of our Constitution. He 

said they conferred as against the government the right to be let 

alone, the most comprehensive of rights and the right most valued 

by civilized man, end of quote. That was Justice Brandeis. Thank 

you, Mr. Chairman. 

Senator ALLEN. Thank you, Senator Nelson. Senator Lautenberg. 

STATEMENT OF FRANK R. LAUTENBERG, 

U.S. SENATOR FROM NEW JERSEY 

Senator LAUTENBERG. Yes, Mr. Chairman, thank you. Very briefly, isn’t it interesting to see how quickly Congress can jump to the 

task when some 50 million people agree about something they don’t 

4 

like? It’s the first precipitous action that I’ve seen that stimulates 

movement here and it’s good to see it. Frankly, I commend the 

chairmen, Chairman Muris and Chairman Powell, for trying to do 

what you can to help us get through this dilemma. The constituents have spoken very clearly, very loudly, and we see organization 

after organization carrying the case as well. 

I am a firm believer in the First Amendment, but I don’t think 

the First Amendment gives people the right to disturb somebody’s 

personal life as it happens now with the telemarketing assaults. I 

was away from here a couple days over the weekend and when I 

got back, my phone light on call waiting was lit and I got a couple 

of people who were, once again, espousing the cause of their particular telemarketing agency, and it’s a darn nuisance. 

So what we want to do is work hard to get to the bottom line 

here and see if we can fashion something that doesn’t violate people’s rights to deliver a message but at the same time protect the 

privacy of those who don’t want to have to hear it, and I am anxious to hear from our witnesses, Mr. Chairman, and I hope that 

we’ll be able to come to some conclusion after hearing the full array 

of witnesses that we have. 

[The prepared statement of Senator Lautenberg follows:] 

PREPARED STATEMENT OF HON. FRANK R. LAUTENBERG, U.S. SENATOR FROM NEW JERSEY

Mr. Chairman: 

It’s not too often that nearly all Democrats and Republicans in the House and in 

the Senate can agree on something. But that’s what happened last week when the 

House passed the ‘‘Do-Not-Call’’ bill by a vote of 412 to 8, and the Senate followed 

suit with a vote of 95–0. 

It seems even rarer that we can muster the will to do something at least 50 million Americans want us to do—and to do it quickly. But that’s what happened last 

week. 

Our constituents have spoken and it’s clear that they want a ‘‘do-not-call’’ registry 

to protect them from intrusive telemarketers. And we in Congress are committed 

to getting this registry up and running. 

I am a strong believer in the First Amendment, but Idon’t think the First Amendment gives you the right to disturb someone’s dinner or tie up their phone line. We 

have the right to hang ‘‘Do Not Disturb’’ signs on our hotel room doors; we should 

also have the right to put a ‘‘do not disturb’’ on our home phone. 

The telemarketing industry can file all of the lawsuits it wants; the ‘‘bottom line’’ 

is that Congress and the FTC are going to find a way to make this registry a reality. 

I am anxious to hear from our witnesses on how we can do that. Our constituents 

are demanding no less. They deserve no less. 

Thank you, Mr. Chair. 

Senator ALLEN. Thank you, Senator Lautenberg. Senator 

Sununu. 

STATEMENT OF HON. JOHN SUNUNU, 

U.S. SENATOR FROM NEW HAMPSHIRE 

Senator SUNUNU. Thank you, Mr. Chairman. I certainly welcome 

our witnesses and would put three thoughts in front of them and 

the Committee members as we work through this issue. First is 

whether or not in writing the legislation in the first place we’ve put 

the responsibility for overseeing the do-not-call list in the right 

place. And I’m glad to see we have both Mr. Muris and Mr. Powell 

here because I think it’s an important question moving forward 

once the court issues are dealt with, if we’re going to have a doVerDate Nov 24 2008 12:20 Sep 09, 2014 Jkt 075679 PO 00000 Frm 00008 Fmt 6633 Sfmt 6601 S:\GPO\DOCS\89661.TXT JACKIE
5 

not-call list that we burden the right regulatory agency and conversely protect our regulators so that they can focus on their core 

missions. 

Second, is that we remain cognizant of the free speech issues 

here. While Senator Nelson described a scenario of political 

protestors coming into a living room and we wouldn’t be for that, 

we have in all reality established just that in writing this law, because even if the law is implemented, while those marketers 

wouldn’t be allowed to come into your living room, there is an exception for charitable organizations and for politicians, those very 

political protestors that we might be concerned about coming into 

the living room are allowed into the living room. That may or may 

not be the right decision. We have to be cognizant that while the 

Constitution in the Supreme Court has made some distinction between commercial speech and political speech, commercial speech 

is protected at some level and we have to decide whether or not we 

want in these regulations to continue to try to make a distinction 

between the activity of a charitable organization, a political organization, and someone trying to sell a product. 

And third, and maybe most importantly today, we want to make 

sure that the public knows what is happening today and tomorrow 

in moving forward, to what extent will this list be put into effect 

as a matter of practice by the regulators, and to what extent will 

this do-not-call list be utilized by telemarketers to protect the public. We want to make sure that the public understands how this 

process works, because confusion doesn’t serve us as policymakers 

and it certainly doesn’t serve the public. Thank you, Mr. Chairman. 

STATEMENT OF HON. GEORGE ALLEN, 

U.S. SENATOR FROM VIRGINIA 

Senator ALLEN. Thank you, Senator Sununu. I’ll make a few 

comments here. I’m one who’s generally not in favor of government 

regulations. However, it strikes me that these regulations, the donot-call registry is simple and it provides individuals with the empowerment to not be bothered in their homes, and as much as I 

don’t like regulations, I certainly don’t want to impinge upon the 

ability of individuals to stop unwanted commercial calls into their 

homes. 

This donotcall.gov website that the FTC launched was the fastest 

growing website in history, over 50 million phone numbers were 

registered, 1.3 million of those in the Commonwealth of Virginia. 

I would also note this: the 50 million across the country is more 

than the votes that either President Bush or Vice President Gore 

received in the 2000 election. So the courts are going to debate this, 

we’ll get insight from these two chairmen and our esteemed witnesses, but I think that you’ll see that the Senate, which is sometimes likened to a hobbled mule in its ability to move at any sort 

of speed, actually that hobbled mule jumped and voted 95 to nothing last week to effectuate the will and desires on a bipartisan 

basis of the Senate, as well as obviously the will of people and families across this country not to be pestered with commercial calls. 

So we look forward to our witnesses here today and see how we 

can continue to be supportive of the desires in this common sense 

solution to empower individuals. With that, we’ll first hear from 

6 

the Chairman of the Federal Trade Commission, then we’ll hear 

from the Chairman of the Federal Communications Commission. 

Mr. Muris. 

STATEMENT OF HON. TIMOTHY MURIS, CHAIRMAN, 

FEDERAL TRADE COMMISSION 

Mr. MURIS. Thank you very much, Senator. It’s a pleasure to be 

here with Chairman Powell. This registry is a partnership and it 

will not be as fully effective in protecting consumers unless we’re 

both allowed to enforce it. 

I want to thank this Committee and its members very much, particularly absent Chairman McCain and Senator Hollings, for their 

support of us. When the telemarketers tried to stop us earlier this 

year, you quickly acted in passing the Do-Not-Call Implementation 

Act. When the Oklahoma judge last week read that statute to not 

authorize the registry, in lightning speed and with unanimous Senate you passed the authorization the President signed yesterday, 

which one member called the ‘‘We Really Meant It Act.’’ 

I wanted to emphasize three points. One is the importance of the 

registry, second is the registry’s constitutionality, and spend most 

of my time on the necessity for both consumers and telemarketers 

of the FTC, the FCC, and the states all being able to enforce the 

national registry, and as I said, it’s necessary for both consumers 

and telemarketers. 

I think the importance of the registry is obvious. Our sole mission at the Federal Trade Commission is to protect consumers. In 

the nearly 28 months since I’ve been Chairman, there is nothing 

that we have spent more time and energy on. There is nothing 

that’s more important than the establishment of this registry, for 

a very simple but important reason: We believe the consumers 

ought to have a choice to choose whether those unsolicited commercial telemarketing calls go into their homes. 

The response, as you’ve all mentioned, was enormous. There are 

now over 51 million people on the registry. It’s hard to imagine a 

more graphic expression of public interest than how you reacted 

last week. 

My second point is the legality. The judge ruled that the registry 

does not, ‘‘advance the FTC’s interest in protecting privacy or curbing abusive telemarketing practices.’’ I would submit, with all respect, that the tens of millions of Americans who have registered 

more than 51 million phone numbers disagree. I’m not sure I’ve 

ever seen such resounding empirical refutation of a statement in a 

court. 

Second, the point that we have to treat charities and commercial 

telemarketers the same puts the FTC and the FCC, if it’s applied 

to them, in a hopeless catch-22. The Supreme Court has repeatedly 

said that charitable solicitation has greater constitutional protection. We will ultimately be in much more danger constitutionally 

if we did what or if we do what the Denver judge wanted. 

Now, we’ve asked the judge for—— 

Senator ALLEN. Chairman Muris, just for the record, could you 

restate that again, what you just said, the distinction between commercial versus—— 

Mr. MURIS. Versus charitable. 

7 

Senator ALLEN. Right. 

Mr. MURIS. If we equated commercial and charitable speech, we 

would be in much greater danger constitutionally ultimately than 

we than the registry that we in fact have implemented. And the 

reason is that the Supreme Court has repeatedly said charitable 

solicitation enjoys much greater constitutional protection, in part 

because the solicitation itself is intertwined with the fully protected 

speech, and that’s a principle that the Court again has widely recognized. 

Now, we’ve asked the judge for a stay. Last night he denied it, 

in part because he found that the interests of the telemarketers 

outweighed the interest of consumers. We’re appealing this this 

morning, the Tenth Circuit opens soon. Given the Federal Communications the ruling on the FCC last Friday, which some of you 

have mentioned we have considerable optimism. 

Now, let me turn to address in more length this last point about 

where we are and why, from even the standpoint of telemarketers, 

given the FCC’s rule as to going in operation tomorrow, it is much 

better for the states, for telemarketers, for consumers, for the FCC, 

for the FTC, that our registry be allowed to go into enforcement. 

The current situation is both confusing and chaotic. In the months 

since the Commission promulgated its do-not-call rule, the FCC 

and numerous states have acted in reliance on the FTC’s registry. 

The FTC promulgated its own do-not-call list, which relies on the 

registry. 

For now, the FCC rule remains in effect. The states have adjusted their laws, many states, to use the FTC’s registry rather 

than maintaining a registry of their own. It obviously makes no 

sense to maintain two registries, and that’s where the states are 

headed and many are already there. Moreover, under the FCC statute, any state with its own do-not-call requirements may and I’m 

sure the telemarketers will argue this may have to download 

names on the national registry to enforce the state requirement. 

The situation is further complicated by the fact that some telemarketers have already downloaded the list, which they’ve been 

able to do since September 2, but others have not. 

As a result, there are at least four serious problems that we hope 

the Tenth Circuit will resolve. The first problem is access to the 

list. With the FCC’s rule in effect, telemarketers in states need the 

list to comply. After the judge’s decision, we decided this was last 

week we decided not to share the list with anyone. Telemarketers, 

moreover, based on what they told the judge yesterday, will apparently seek to hold us in contempt if we do virtually anything with 

the list. 

Indeed, the telemarketers made clear yesterday, despite their 

statements about requesting voluntary cooperation or at least leaving it up to the telemarketers, that they want us to stop from continuing to accept consumer registrations. We had shut the list 

down entirely except for the enforcement parts of it, the complaint 

processing parts of it, the sharing parts of it, except for accepting 

registrations. Because of the judge ruling last night, this morning 

we are evaluating what steps are necessary to shut down this part 

of the system. 

8 

Given the technology involved, particularly in the phone system, 

it’s considerably more complicated than turning off a light. This 

system is set up to be entirely automated, to receive phone calls 

from all over the country, and with more than 50 million numbers 

you can imagine you can’t do this on index cards. We cannot at 

present, moreover, allow voluntary access to the list to telemarketers. The list was set up for paid access. When we began exploring the issue of voluntary access, we realized it would take 7 

to 10 days to reconfigure the system and actually make the data 

available, and in fact we’ve been working on that, on the mechanics 

of doing that in the interim. 

Moreover, without a stay, as I’ve just mentioned, we are concerned that the telemarketers would argue that allowing access 

without paying might violate the order. This is a real issue given 

the position that they took in court yesterday. 

We also have refused to allow those who have the list and there 

are over 400 that have the whole list and there are thousands who 

have parts of the list, sellers and telemarketers we’ve refused to 

allow them to share the list with others. As part of their sign-up 

process they have to pledge that they will only use the list for the 

purpose of complying with the do-not-call requirements. Now that 

promise is no longer enforceable through our rule, but it is enforceable through the criminal statutes that prohibit lying to the Government. 

If we allow firms that have the list to trade it or to share it, 

there will be no enforceable promise. The do-not-call list could 

quickly become a do-call list in the hands of unscrupulous telemarketers and we simply will take steps to prevent that. 

The second of the four problems I mentioned is that telemarketers face the threat of inconsistent State and FCC positions 

regarding those who have the list and those who do not. The FCC 

has said it will enforce its rule against companies that already 

have the list, and some states appear to be saying that they will 

enforce the requirement against sellers who use telemarketers who 

do not have the list and can not comply, which is a more aggressive 

position. 

Third, at least some State laws are in jeopardy. Many states 

have made our list the State list. Enforcement requires access to 

the list and that access is currently unavailable. Finally, for the 

system to work well, our complaint system is a key component for 

the FCC, for us, and the states. The way the complaint system was 

going to work was using the same mechanisms, which we’ve shut 

down, using the same mechanisms by which people registered, people were going to be able to give us complaints. Since we’re expecting complaints in an extraordinary large volume again, it was an 

automated system, and that system is now unavailable, hampering 

enforcement. 

Now, Mr. Chairman and Members of this Committee, telemarketers have said repeatedly that they want voluntary compliance or at least the option of voluntary compliance with the do-notcall registry, but they apparently do not want customers to add 

their names to the list, and they apparently do not want us to be 

able to provide the list. A voluntary system with no names and no 

9 

1The views expressed in this statement represent the views of the Commission. My oral statements and responses to any questions are my views, not necessarily the views of the Commission or any other Commissioner. 2The Omnibus Appropriations Act, Public Law 108–7, enacted Feb. 21, 2003. 

3 16 C.F.R. Part 310. 

4The states are Alabama, Arkansas, California, Colorado, Connecticut, Florida, Kansas, Kentucky, Maine, Massachusetts, Minnesota, New York, North Dakota, and Oklahoma. 5 U S. Security v. FTC, No. CIV 03–122–W (W.D. Okla. 2003). 6Mainstream Marketing v. FTC, No. 03–N–0184(MJW) (D. Col. 2003). 7Mainstream Marketing v. FCC, No. 03–9571 (D. Col. 2003). 

access looks a lot like the current problem. Telemarketers can call 

whoever they want whenever they want. 

Finally, let me conclude with a prediction. This is the right thing 

to do, the law is on our side, there will ultimately be a list, it will 

be maintained by the Federal Trade Commission, and because of 

the publicity and the frustration with the telemarketers, there will 

be many millions of more consumers on that list than there would 

have been otherwise. Thank you very much. 

[The prepared statement of Mr. Muris follows:] 

PREPARED STATEMENT OF THE FEDERAL TRADE COMMISSION

Mr. Chairman, thank you for the opportunity to present testimony on the status 

of the FTC’s National Do Not Call Registry.1

As you know, the Commission adopted the Registry as one of the amendments to 

the Telemarketing Sales Rule (TSR) announced December 18, 2003, and formally 

promulgated in the Federal Register on January 29, 2003. On March 11, 2003, 

President Bush signed into law the Do Not Call Implementation Act (DNCIA), 

which provides for the FTC to collect fees from sellers and telemarketers to fund 

the establishment and maintenance of the National Do Not Call Registry. Congress 

enacted this legislation, and provided complementary appropriations,2 to support 

the FTC’s decision to establish such a Registry (conditioned on funding) as part of 

its amendment of the TSR.3 The DNCIA also set a short deadline for the FCC to 

finish a rulemaking proceeding, already in progress, reviewing that agency’s telemarketing regulations (originally promulgated in 1992) pursuant to the Telephone 

Consumer Protection Act (TCPA), and required the FCC to maximize consistency 

with the FTC’s Do Not Call rules. Accordingly, the FCC announced its adoption of 

complementary do not call regulations on June 27, 2003, and formally promulgated 

them in the Federal Register on July 25, 2003. 

Both sets of regulations prohibit companies subject to the respective agencies’ jurisdiction from calling consumers who enter their phone numbers on the National 

Do Not Call Registry database established and maintained by the FTC. Both agencies set October 1, 2003 as the date when they would begin enforcing the Do Not 

Call Registry provisions, and when telemarketers and sellers would be required to 

refrain from calling consumers who had placed their numbers in the Registry. 

The Registry opened to accept consumer registrations on June 27, 2003, and within three days more than 10 million phone numbers had been registered. Fourteen 

states have shared the contents of their registries with the National Do Not Call 

Registry, contributing over nine million phone numbers.4 As of September 28, 2003, 

there were more than 51.5 million phone numbers in the Registry. 

On September 2, 2003, the Registry became available to telemarketers who 

wished to gain access to the database so that they could refrain from calling consumers who had expressed a preference not to receive telemarketing calls. Since 

then, over 13,000 organizations have subscribed, and of those, more than 400 have 

accessed and paid for the entire Registry. 

Shortly after the FTC promulgated the amended TSR, two telemarketing trade associations filed separate legal challenges to various provisions of the amended Rule, 

including the National Do Not Call Registry provisions. The Direct Marketing Association and several of its members brought suit in Federal district court in Oklahoma City,5 and the American Teleservices Association and several of its members 

sued in the Federal district court in Denver.6 The American Teleservices Association 

also challenged the FCC’s revised telemarketing rules in a separate lawsuit.7 Regrettably, a decision in the American Telemarketing Association’s challenge to the 

10 

8See press release at http://hraunfoss.fcc.gov/edocslpublic/attachmatch/DOC-239219A1 

.pdf. 9 47 U.S.C. § 227(e)(2). 

10 447 U.S. 557, 564 (1980) 11Order at 19–20, citing Frisby v. Schultz, 487 U.S. 474, 484 (1988). 

FTC’s Rule may leave the FTC unable to put into effect the Registry, even though 

it has received overwhelming support from consumers and from Congress. 

On September 23, 2003, Judge West in Oklahoma City issued a summary judgment order invalidating the Registry provisions on the grounds that the FTC lacked 

statutory authority to establish such a Registry. Congress acted with unprecedented 

speed to pass a new law eliminating the problem that Judge West had perceived. 

We are grateful to Chairman McCain, Senator Hollings, Chairman Tauzin and Congressman Dingell, and all the other members of Congress who acted so fast and so 

overwhelmingly to demonstrate their support for the Registry. The President signed 

this legislation into law on Monday, September 29. 

Nevertheless, Congress had barely finished its work when U.S. District Judge 

Nottingham in Denver ruled that the Do Not Call Registry offends the First Amendment because it makes a content-based distinction between its treatment of commercial telemarketing calls to sell goods or services and noncommercial calls soliciting 

charitable contributions. We believe that as a matter of law this decision is incorrect, and are therefore confident of ultimate success on appeal. Nevertheless, this 

legal dispute could take years to resolve. In the meantime, the status of the Registry 

is unsettled. 

The Commission is acting to comply with Judge Nottingham’s order ‘‘enjoining the 

FTC from enforcing the amended Rules (issued in December 2002) creating and implementing a Federal Do Not Call Registry.’’ This is not a simple or straightforward 

matter, because the decision may have far reaching repercussions beyond its impact 

on the FTC. 

As noted, the FCC has revised its TCPA regulations to prohibit any company 

under that agency’s jurisdiction from calling consumers’ numbers that appear on the 

National Do Not Call Registry. Chairman Powell of the FCC has announced that 

the FCC will enforce its do-not-call rules against telemarketers that have obtained 

the Do-Not-Call list from the FTC, beginning October 1.8 He noted that the recent 

court cases have not disturbed the FCC rules, and that the 10th Circuit Court of 

Appeals had refused to block the FCC’s rules pending review-as the telemarketing 

industry had urged—citing the strong public interest of leaving the rules in place. 

Chairman Powell stated that the FCC intends to continue to administer and enforce 

its rules to the fullest extent possible as the litigation proceeds. These steps are 

made more difficult because it is unclear the extent to which Judge Nottingham’s 

decision permits the FCC to access the Registry for enforcement or companies under 

FCC jurisdiction to access the Registry for compliance with the FCC’s rules. 

Similarly, Judge Nottingham’s ruling threatens the ability of the states with do 

not call laws to enforce them. The TCPA prohibits any state that has a do not call 

registry from enforcing its do not call law unless its registry includes the phone 

numbers of consumers from that state who are on the National Do Not Call Registry, which the FCC has established as a single national do not call database as 

part of its revised TCPA regulations.9 Because it is unclear the extent to which 

Judge Nottingham’s decision permits the states to access the Registry for purposes 

of enforcement of state law, the decision casts doubt on the ability of states to enforce their do not call laws. 

We believe that the FTC is likely to succeed on the merits of its appeal because 

the district court’s decision reached an unprecedented conclusion that telemarketers 

have a constitutional right to continue telemarketing calls to consumers who have 

indicated that they do not want these calls. This holding is at odds with the relevant 

Supreme Court cases. Specifically, the court erred in its application of Central Hudson Gas & Electric Corp. v. Public Service Commission of New York.10 Under Central Hudson, a regulation of truthful nondeceptive commercial speech will survive 

First Amendment scrutiny if: (1) the government asserts a substantial interest; (2) 

the regulation directly advances that interest; and (3) the regulation is reasonably 

tailored to serve that interest. 

With respect to the first prong of the Central Hudson test, the Denver court recognized that the interest the Registry is designed to advance, protecting consumers 

from unwanted telemarketing calls, is a substantial one. Millions of consumers have 

signed up for the Registry in the hope that it would shield them from unwanted 

telemarketing calls. As the district court noted, ‘‘[t]he government’s interest in protecting the well-being, tranquility, and privacy of the home is of the highest order 

in a free and civilized society.’’ 11

11 

12Order at 22. 13See United States v. Edge Broadcasting Co., 509 U.S. 418,431 (upholding regulation that 

restricted lottery ads from only 11 percent of radio listening time in the affected area). 14See Riley v. National Federation of the Blind of North Carolina, Inc., 487 U.S. 781, 787– 

88 (1988). 15 507 U.S. 410 (1993). 16Order at 24. 17 323 F.3d 655 (8th Cir. 2003) (quoting H.R. Rep. No. 102–317, at 16 (1991). 18On October 25,2001, the USA PATRIOT Act, Pub. L. 107–56, 115 Stat. 272 (Oct. 26, 2001), 

became effective, which, in relevant part, expanded the coverage of the TSR to reach not only 

calls to solicit sales of goods and services, but also calls soliciting charitable contributions. 19 507 U.S. at 418. 20See Destination Ventures, Ltd. v. FCC, 46 F.3d 54 (9th Cir. 1995). In that case, the court 

upheld a prohibition on unsolicited faxes that applied only to commercial faxes. The court held 

that Discovery Network did not require the FCC to distinguish the harm caused by commercial 

Continued 

We disagree, however, with the court’s analysis of the second prong of the Central 

Hudson test, the requirement that the Registry must materially advance the government’s interest in protecting consumers from unwanted telemarketing calls. The 

court conceded that the Registry ‘‘might eliminate anywhere from forty to sixty percent of all telemarketing calls for those who subscribe, a substantial amount of unwanted calls.’’ 12 Indeed, as a result of the FCC’s complementary TCPA regulations, 

the Registry will likely shield consumers from as many as eighty percent of unwanted calls. Because the Registry would put a halt to a substantial percentage of 

unwanted telemarketing calls, it materially advances the government’s interest.13

Nevertheless, the court ruled that the Registry could not pass muster under Central Hudson because the Registry does not also apply to charitable solicitations— 

even though charitable solicitation constitutes fully protected speech.14 The court 

criticized the TSR’s accommodation of protected charitable solicitation as ‘‘content 

based,’’ and therefore—in its view—as impermissible under City of Cincinnati v. Discovery Network, Inc.15 The court appears to have ruled out any distinction between commercial and non-commercial speech in the regulation of telemarketing. In 

fact, the court’s decision puts the FTC in an awkward position—in order to protect 

consumers from unwanted commercial calls, the FTC would run the risk of creating 

an impermissible infringement on fully protected speech. The court’s reasoning is 

erroneous, for three reasons. 

First, the court erred in supposing that there is ‘‘no doubt’’ that calls soliciting 

charitable contributions are equally as invasive as commercial calls.16 On the contrary, as the Eighth Circuit recognized in Missouri v. American Blast Fax, Inc., Congress itself, in enacting the TCPA, concluded that ‘‘non-commercial cal1s . . . are 

less intrusive to consumers because they are more expected.’’17

In this regard, the Court also failed to note that reasons directly related to the 

abuses the Do Not Call rules seek to remedy compelled the FTC’s determination to 

exempt charitable solicitation calls from the National Do Not Call Registry Requirements (while subjecting them to the company-specific do not call provisions). For 

eight years, the Rule has contained a company-specific do-not-call provision, which 

was intended to shield consumers from unwanted telemarketing calls, but until 

March 31, 2003, this provision applied only to commercial telemarketers.18 Although 

the record shows that this provision failed to achieve its goal with respect to commercial telemarketing calls because those telemarketers frequently ignored consumers’ requests to be put on company-specific lists, there was no comparable evidence that for-profit telemarketers who solicit on behalf of charities will ignore the 

company-specific provision. There is also no record evidence that, with respect to 

charitable solicitors, the company-specific provision will not achieve the FTC’s goal 

of protecting consumers from unwanted telemarketing. In fact, evidence on the 

record indicates that the different incentives that govern charitable solicitations as 

compared to commercial solicitations may make the company-specific approach more 

workable and effective with respect to charitable solicitations. Accordingly, the 

record provides ample reason, directly related to the abuses the Registry is aimed 

at, for treating charitable solicitations differently. 

Second, the district court ignored the context in which the Supreme Court addressed the issue in Discovery Network. In that case, the ordinance’s exception for 

non-commercial newsracks made the ordinance ineffective in addressing the public 

purpose in question preventing the clutter and disruption on city sidewalks engendered by newsracks—because commercial newsracks comprised only a very small 

proportion of newsracks overall.19 By contrast, the TSR’s Do Not Call Registry provisions cover the vast majority of telephone solicitations, especially in light of the 

FCC’s complementary rule. This fact distinguishes Discovery Network.20

12 

and noncommercial faxes because it was undisputed that commercial faxes caused the bulk of 

the problem. 46 F.3d at 55. Whereas, as here, the regulation furthers the government’s goal, 

Discovery Network does not prevent the government from regulating commercial speech merely 

because it has not also regulated fully protected speech. This is what the Supreme Court meant 

in United States v. Edge Broadcasting Co., 509 U.S. 418,434 (1993), when it said that there is 

no constitutional requirement that the government ‘‘make progress on every front before it can 

make progress on any front.’’ 21 Board of Trustees of the State University of New York v. Fox, 492 U.S. 469,480 (1989); cf. 

Lanphere & Urbaniak v. Colorado, 21 F.3d 1508, 1515–16 (10th Cir. 1994) (where restriction 

entails ‘‘an indirect barrier to commercial speech,’’ ‘‘the ’reasonable fit’ test of Fox is more easily 

satisfied’’). 22See Rubin v. Coors Brewing Co., 514 U.S. 476, 481–82 (1995). 23See Mainstream Marketing v. FCC, No. 03–9571(10th Cir., Sept. 26, 2003) (Order denying 

stay, recognizing ‘‘the strong expectation interest of the many millions of Americans who have 

registered’’ on the do-not-call Registry). 24See www.the-dma.org/cgi/dispnewsstand?article=1494. 

Third, in assessing the ‘‘fit’’ of the Do Not Call Registry under Central Hudson, 

the court failed to take into account the minimal nature of any governmental intrusion on speech. Unlike the ordinance in Discovery Network, the National Do Not 

Call Registry does not ban any speech; it only facilitates consumer choice whether 

particular speech is welcome. Even assuming the district court was correct in concluding that the Registry nevertheless imposes some level of burden on speech, the 

degree of any such restriction is relevant to an assessment of whether the measure 

is ‘‘narrowly tailored to achieve the desired objective.’’ 21 The Do Not Call Registry 

has been carefully tailored, allowing commercial telemarketing to be directed at all 

consumers except those who have specifically requested that they be spared such 

intrusions. Such a system is consonant with the underlying purpose of the commercial speech doctrine—i.e., enhancing consumer welfare by ensuring the availability 

of information consumers value.22

More than 50 million telephone numbers are now in the Registry. All these consumers have stated that they want an end to telemarketing calls. The Rule’s Do Not 

Call Registry provisions that protect consumers were scheduled to take effect on October 1, 2003. The FTC has moved for a stay of the district court’s order, but if the 

stay is not granted, tens of millions of consumers will continue, after that date, to 

receive those telemarketing calls.23 By contrast, if a stay is granted, telemarketers 

will be restrained from calling only those consumers who have signed up for the registry and who have declared their lack of interest in telemarketing sales calls. Indeed, the Direct Marketing Association, a telemarketing industry trade association, 

has recently stated that it ‘‘remains committed to respecting * * * the wishes of all 

consumers no matter how those wishes have been expressed.’’ 24 We believe we have 

a strong argument for success in our motion for a stay, and we are hopeful that 

a stay will be granted. 

It is hard to imagine a more graphic expression of public interest than the Congressional response to Judge West’s September 23, 2003, decision holding that the 

FTC lacked statutory authority to create the registry. Within only 48 hours of that 

decision, both houses of Congress passed legislation expressly ratifying the registry. 

We hope that the strong public interest embodied in Congress’s recent enactment 

will not be thwarted. 

For over two years, the highest priority of the FTC has been simple: to allow consumers to choose whether to accepted unsolicited telemarketing calls in their homes. 

Even before the National Do Not Call Registry was to become effective, Americans 

registered more than 50 million phone numbers with the FTC. Millions have also 

registered with similar state lists. 

This simple concept has been surprisingly difficult to implement. The FTC spent 

a year reviewing the rule and another year soliciting and considering comment from 

sellers, telemarketers, and consumers. Every effort was made to accommodate the 

industry’s concerns about the original proposal, refining and revising it, for example, 

to permit a company to call consumers on the registry if they have an established 

business relationship with that company. 

Despite our efforts, the telemarketers have used every weapon in their formidable 

arsenal to deprive consumers of choice. The FTC will continue to make every effort 

to give consumers an effective choice about stopping unwanted and intrusive telemarketing calls. 

The CHAIRMAN [presiding]. Well, that’s a very uplifting message, 

Chairman Muris. We appreciate it. 

Mr. MURIS. I’m an optimist. 

13 

The CHAIRMAN. Chairman Powell. 

STATEMENT OF HON. MICHAEL K. POWELL, CHAIRMAN, 

FEDERAL COMMUNICATIONS COMMISSION 

Mr. POWELL. Thank you, Senator McCain, good morning, Mr. 

Chairman, distinguished Members of the Committee. It’s always a 

pleasure to come before you today and particularly honorable to 

come before you on such a critical issue to our consumers and sit 

with my colleague and partner in this endeavor, Chairman Muris, 

who’s been a great leader on the do-not-call registry issue. 

First and foremost, I want to state unequivocally and ensure the 

American consumers and Congress that the FCC will continue to 

devote its full resources, it will exhaust every legal remedy possible 

to ensure that national do-not-call list survives. More than 10 years 

ago, Congress vested the FCC with broad authority to protect consumers from unwanted calls, and in our June order we expanded 

on that effort. Last week, in fact, when these rules were challenged 

in the Tenth Circuit Court of Appeals, the court specifically refused 

to block our rules. It held, and I quote, that ‘‘on the record presented, the telemarketing industry had failed to establish a likelihood of success on the merits.’’ 

Citing further the strong public interest in leaving these rules in 

place, the court made clear that rules should go forward. Most recently, the Supreme Court of the United States yesterday declined 

to disturb the lower court’s rulings, so the FCC continues to put 

its rules into effect beginning tomorrow. 

It is important, however, to understand as a practical matter 

that the legal challenges to the FTC rules affect the enforcement 

of our rules because the congressional statute instructed the two 

agencies to work in partnership with one another to achieve our 

common consumer protection goals. Over the past week we have 

been through the circular mill of three district court decisions, the 

most recent issued late last night addressing the FTC’s rules, and 

they have introduced a great deal of confusion with regard to the 

implementation and enforcement of the registry. 

The Colorado District Court’s order last night has raised questions about the FCC’s ability to enforce the list. Most directly, to 

the extent the court ruling prevents the FCC from accessing the 

FCC data base, our enforcement efforts could be hampered. However, the Commission continues to explore ways to make sure that 

its enforcement is effective and will continue to do so. 

We continue to study the court’s decision last night and are 

working hard to clarify that landscape for ourselves, for Congress, 

and for consumers. And in the meantime, as I have said, I commit 

to you that to the extent legally permissible, the FCC will enforce 

the rules against telemarketers, period. 

If consumers on the list receive a prohibited call, they may file 

a complaint. I would urge them to call 1–888–CALL–FCC, or by 

visiting our website at www.fcc.gov. The Commission will evaluate 

all complaint data so that to the extent legally permissible it can 

target enforcement in the most aggressive way possible to protect 

consumers. 

I also want to take a final second to emphasize that while the 

do-not-call list, which has captured most of the attention, the FCC’s 

14 

comprehensive telemarketing rules protect consumers in many 

other ways that are completely unaffected by the court challenges. 

For example, consumers still have the right to be placed on companies’ specific do-not-call lists. Second, they have the right to be protected from all calls between 9 p.m. and 8 a.m.—and Senator, if 

that call at dinner occurred in that timeframe, you let us know and 

we’ll take care of it right away to be free from excessive hang-ups 

or dead air calls. These rules are clearly in effect and they will be 

rigorously enforced. Notwithstanding how the court challenges resolve themselves, telemarketers have important and ongoing responsibilities under our rules to protect consumers. 

Finally, to defend the consumer’s choice about telemarketing 

calls, the Government has marshaled all of its resources. The Federal Communications Commission, the Federal Trade Commission, 

the Department of Justice, all working together to vigorously defend the rules in a number of courts around the country. In the 

face of an adverse court ruling, this Congress showed decisive leadership and commitment, by acting with dispatch over the past 

week to cure jurisdictional questions, and the President of the 

United States with haste signed the legislation and has lent his 

full support to our efforts to protect consumers. 

I stand ready to work with Congress to find that path to effectuating the will of the American people and with the team we have 

assembled, I remain confident we will prevail. I believe ultimately 

our rules will stand constitutional challenge. In the end, I’m simply 

unwilling to accept that the notion of the First Amendment unavoidably bars the American people from deciding who calls them 

in the privacy of their own homes. The First Amendment protects 

a willing speaker to talk to a willing listener, not to an unwilling 

listener, and I assure you that the full resources of the FCC are 

committed to defending our rules, taking any steps necessary to effectively implement and enforce them, and to the full extent permissible by law. 

Thank you, Mr. Chairman, and distinguished Members of the 

Committee. I’m happy to take your questions. 

[The prepared statement of Mr. Powell follows:] 

PREPARED STATEMENT OF HON. MICHAEL K. POWELL, CHAIRMAN, FEDERAL COMMUNICATIONS COMMISSION

Good morning, Mr. Chairman and distinguished members of the Committee. It is 

my pleasure to come before you today with my colleague Federal Trade Commission 

Chairman Tim Muris to discuss the implementation of the national Do-Not-Call 

Registry. 

First and foremost, let me assure every American consumer and the Congress 

that the FCC will continue to devote its full resources and exhaust every legal remedy to ensure that the national Do-Not-Call list survives. 

More than ten years ago, Congress vested the Federal Communications Commission with broad authority to protect consumers from unwanted calls. In our June 

order, we expanded on that effort. Last week, when these rules were challenged in 

the 10th Circuit Court of Appeals, the Court specifically refused to block our rules. 

It held that ‘‘on the record presented . . . [the telemarketing industry] ha[d] failed 

to establish a likelihood of success on the merits.’’ Citing the strong public interest 

in leaving these rules in place, the Court made clear that the rules should go forward. Most recently, the Supreme Court yesterday declined to disturb the Court’s 

ruling. 

However, as a practical matter, challenges to the FTC’s rules affect the enforcement of our rules because the statute instructed the two agencies to work in partnership with one another to achieve our common consumer protection goals. Over 

15 

the past week, three district court decisions (the most recent issued last night) addressing the FTC’s rules have introduced confusion with regard to the implementation and enforcement of the national Do-Not-Call Registry. The Colorado district 

court’s order last night has raised questions about the FCC’s ability to enforce the 

list. Most directly, to the extent the court’s ruling prevents the FCC from accessing 

the FTC’s database, our enforcement efforts may be hampered. 

We are still studying the court’s latest order and working hard to clarify the legal 

landscape. In the meantime, I commit to you that, to the extent legally permissible, 

the Federal Communications Commission will enforce its National Do-Not-Call rules 

against telemarketers that have obtained the Do-Not-Call Registry from the Federal 

Trade Commission. 

If consumers on the list receive a prohibited call, they may file a complaint by 

calling 1–888–CALL–FCC or by visiting our website at www.fcc.gov. The Commission will evaluate all complaint data so that, to the extent legally permissible, it can 

target enforcement to most aggressively protect consumers. 

I also want to emphasize that while the Do-not-Call List has captured the most 

attention, the FCC’s comprehensive telemarketing rules protect consumers in many 

ways that are completely unaffected by court challenges. For example, consumers 

have the right (1) to be placed on a company-specific do-not-call list; (2) to be protected from all calls between 9 p.m. and 8 a.m.; and (3) to be free from excessive 

hang ups or dead air calls. These rules clearly are in effect and enforceable. Notwithstanding how the court challenges resolve themselves, telemarketers have important and ongoing responsibilities to protect consumers. 

Finally, to defend the consumer’s choice about telemarketing calls, the government has marshaled all its resources. The Federal Communications Commission, 

the Federal Trade Commission and the Department of Justice are working together 

to vigorously defend the Do-Not-Call rules in a number of courts around the country. In the face of an adverse court ruling, this Congress showed decisive leadership 

and commitment by acting with dispatch over the past week to cure any possible 

jurisdictional questions. And the President without haste signed the legislation and 

has lent his full support to our efforts to protect consumers. I stand ready to work 

with Congress to find a path to effectuating the will of the American people. With 

this team, I remain confident that we will prevail. 

I believe our rules will withstand Constitutional challenge. In the end, I am simply unwilling to accept the notion that the First Amendment unavoidably bars the 

American people from deciding who calls them in the privacy of their own homes. 

I assure you that the full resources of the FCC are committed to defending our rules 

and taking any steps necessary to effectively implement and enforce them, to the 

full extent permissible by law. 

Thank you Mr. Chairman and distinguished members of the Committee. I will be 

happy to take your questions. 

The CHAIRMAN. I thank you very much. To go back to the beginning of this problem, isn’t it correct that the court ruled the way 

it did, not that Congress doesn’t have the right to have a do-notcall list, but it doesn’t have the right to exempt certain aspects of 

it such as charitable or political? In other words, if a do-not-call list 

had been blanket then the court wouldn’t have decided the way 

that it did? Is that a correct assessment? 

Mr. MURIS. Well, I believe so, reading the judge’s opinion, but I 

believe that we’d be in much more constitutional danger if the list 

was if the list equated commercial telemarketing with charitable 

and politicians. 

The CHAIRMAN. Well, I was going to get to that, but isn’t that 

correct, the basis of the court decision in your view? 

Mr. MURIS. Yes. 

The CHAIRMAN. Chairman Powell also? Go ahead. 

Mr. POWELL. Senator, I think there’s an important caveat, at 

least today. What the court ruled was that the FCC, who exempted 

charitable organizations and non-commercial speech, was doing so 

at its initiative and it challenged that, but it pointed out that in 

the context of our rules we have a Congressional finding that distinguishes between commercial and non-commercial speech, and it 

16 

even suggested that that Congressional finding in the TCPA might 

be an acceptable basis for making the decision, citing an Eighth 

Circuit case in which the facts rules were upheld against a constitutional challenge that made the same distinction because Congress had so found. So there’s still a possibility that the rules will 

prevail on the basis that Congress has made a thoughtful finding 

distinguishing. 

The CHAIRMAN. But isn’t it. I thank you, but my point is, hasn’t 

Congress passed laws regularly, as regulatory bodies have also 

passed regulations with great frequency, that separate and draw 

distinction between for-profit and charitable? We give tax benefits 

to charitable organizations. Isn’t there a clear precedent that we do 

differentiate between charitable and non-charitable activities in a 

broad variety of ways? I’ll ask both of you. 

Mr. MURIS. Well, absolutely, indeed both of us have statutes that 

make that distinction. Our more general statute, section 5 of the 

Federal Trade Commission Act, prohibits us from regulating nonprofits in most circumstances and this is ubiquitous. 

The CHAIRMAN. And very appropriately, we want to encourage 

charitable activities. I mean, that’s part of what America and what 

we’re all about. So this brings me, Chairman Powell, to last night 

and this ever-evolving last night, plaintiffs also claimed that the 

FTC is attempting to sidestep the order by providing its register 

to the FCC for the implementation on October 1. The court regards 

the terms of its injunctions and judgment as reasonably clear and 

specific. The FTC is prohibited from creating and implementing its 

do-not-call registry. Now how do you interpret that, Chairman 

Powell? It seems to me this judge is saying that Chairman Muris 

can’t give you that list. 

Mr. POWELL. Well, I think the fair reading of the court’s order 

is that, as against the FTC it’s instructing them that they can’t 

provide that list and I think Chairman Muris has acted completely 

appropriately in limiting the availability of the list. However, that 

does not shut off every avenue for the FCC to prosecute its rules 

that will go into effect pursuant to the Tenth Circuit’s refusal to 

stay them. 

If we can have in the context of an enforcement, if we can breach 

the evidentiary question of whether a telemarketer knew that 

somebody was on the do-not-call list and nonetheless violated our 

rules in calling them, it is our position that we think we have other 

venues to potentially prosecute that as an enforcement matter. 

What I’m forbidden to do is what would have been easy, which is 

going to our computer and accessing the list as it has been maintained by the FTC, but I don’t think that that necessarily means 

we have no other venues for potentially getting that list. 

The CHAIRMAN. So the short-term solution is that you will exercise what you believe is your authority to prosecute those who violate the do-not-call list. And you, Chairman Muris, intend to, as 

quickly as possible, challenge this and seek a stay of this decision 

so that you can proceed with the do-not-call list enforcement. Is 

that a correct assessment as to the status as it exists at this moment? 

Mr. MURIS. Yes, and there’s a third player in this, of course, 

which is the States, which have their do-not-call lists, and they are 

17 

hampered in a similar way that the FCC is, but the court opinions 

don’t stop them. And one of the points we’ve made to the Tenth 

Circuit is this chaos and confusion and hampering that’s caused by 

treating the two agencies differently. 

Mr. POWELL. One other point I’d make just for the record. The 

FCC, too, will have to defend the merits of its decision against constitutional challenge in the Tenth Circuit, and the court has granted, I think wisely, a very expedited schedule for briefing and hearing of those merits through the fall with, I think, oral argument 

on January 12 of this year, of next year. 

The CHAIRMAN. This could be in limbo until January unless you 

get a stay? 

Mr. MURIS. Oh, it would be much past, or at least somewhat past 

January. January is the oral argument just for the FCC. We will, 

if a stay is denied, will seek every other if a stay is ultimately denied, we will seek to try to get the most expedited schedule. It 

might make sense for the Tenth Circuit to combine us all. If they 

do that, however, it will take them some time to write an opinion 

and then there may be further appeals. 

The CHAIRMAN. It would seem to me that the court, that our first 

effort should be to try to get the court to issue a stay. 

Mr. MURIS. Absolutely. And that’s what we’re doing. We are we 

got the opinion last night. The court opens in 14 minutes and we’ll 

be there in 14 minutes. 

The CHAIRMAN. Well, I want to say again, quite often and probably with legitimacy bureaucracies of government are accused of 

being slow to react to the public interest or to difficulties in problems that arise, I would like to commend both of you in the strongest terms for a very rapid reaction on a very important issue to the 

American people and I thank you for it. Senator Wyden. 

But wait, Congress can do nothing at this moment. 

Mr. MURIS. Do you have any suggestions? 

[Laughter.] 

The CHAIRMAN. Besides demagogue the issue I mean. 

Mr. MURIS. Well, I hardly think this is demagoguery. 

Mr. POWELL. Possibly not, but I think it’s important to understand on what basis the court is holding constitutional infirmity. It 

is a basis that potentially could be fixed, that is, Congress potentially could strengthen the distinction between commercial and 

non-commercial—— 

The CHAIRMAN. Could we on the Committee do an amicus brief? 

Mr. MURIS. Well, we would hope that there would be amicus 

briefs from many places, including from the Congress. 

The CHAIRMAN. Well, I think it would be important to come from 

us who—— 

Mr. MURIS. Yes, sir. 

The CHAIRMAN.—wrote the law. 

Mr. MURIS. Absolutely. 

The CHAIRMAN. Well, I think we’ll go see about that. Senator 

Wyden. 

Senator BURNS. Mr. Chairman. 

Senator WYDEN. Thank you. 

The CHAIRMAN. Senator Burns. 

18 

STATEMENT OF HON. CONRAD BURNS, 

U.S. SENATOR FROM MONTANA 

Senator BURNS. Can I interrupt just for a second now? 

Senator WYDEN. Sure. 

Senator BURNS. May I put my statement in the record, Mr. 

Chairman? 

The CHAIRMAN. Absolutely. 

Senator BURNS. We’re in the middle of a mark-up over on the 

supplemental and I know that there’s enough talent around this 

table to bring more light to this subject than probably needs to 

come, but I would like to submit my record and I thank this chairman for holding the hearing. 

[The prepared statement of Senator Burns follows:] 

PREPARED STATEMENT OF HON. CONRAD BURNS, U.S. SENATOR FROM MONTANA

Mr. Chairman, Today’s hearing concerns a topic of very high interest to the American people—the right to privacy from intrusive, aggressive telemarketing in their 

own homes. I commend the Chairman and many of my colleagues on the Committee 

for acting with unprecedented speed last week in pushing forward legislation that 

reaffirmed Congressional intent in authorizing the Do-Not-Call list, which the President signed into law just yesterday. I am also pleased that the Chairman called for 

today’s hearing, which is extraordinarily timely given that the Do-Not-Call list is 

scheduled to go forward tomorrow and over 50 million Americans are expecting it 

to work. 

I also commend Chairman Muris of the Federal Trade Commission and Chairman 

Powell of the Federal Communications Commission for using every resource at their 

disposal to implement the list. In particular, I note the critical move yesterday by 

Chairman Powell to enforce the list given that recent court actions do not impact 

the authority of the FCC in this area. 

I was extremely disappointed at last week’s Oklahoma Federal District Court decision preventing the Federal Trade Commission from going forward on implementing the Do-Not-Call list. The Do-Not-Call list has proven to be one of the most 

popular and necessary consumer initiatives in history. From the day consumers 

have been able to sign up for the Do-Not-Call list on June 26, over 50 million Americans have registered, including 139,000 in Montana. So urgent was the public’s need 

to stop intrusive telemarketers that in the first 14 hours of enrollment on June 26, 

over 650,000 citizens added their numbers to the list. 

Last week’s ill-considered decision by the Federal District Court in Oklahoma 

would have prevented the Do-Not-Call list from going into effect tomorrow. The decision was dead wrong in its core assumption that the FTC acted without statutory 

authority in creating and administering the Do-Not-Call list. In fact, Congress clearly granted the FTC the authority to setup the Do Not-Call list by passing the ‘‘DoNot-Call Implementation Act’’ in February of this year. This Act gave the agency 

authority to collect fees from telemarketers to establish and enforce the list. The 

‘‘Omnibus Appropriations Act’’ in February also authorized the FTC to enforce the 

do not-call provisions. 

Rather than waiting for an appeals court to overturn this wrongheaded decision, 

Congress acted quickly to once again reaffirm its commitment to protecting Americans from needless and unwarranted intrusions into their lives by aggressive telemarketing. Unwanted telemarketing calls have reached unacceptable levels in our 

country. By one estimate, telemarketers attempt almost 105 million calls daily; implementation of the do not-call list would reduce these calls by almost 80 percent. 

Some Americans are sick and tired of these endless interruptions in their private 

lives, which often take place at most unhandy times. By responding rapidly to overturn this reckless and sloppy decision by the Oklahoma District Court, Congress 

sent a clear message that this destructive hyper-marketing will no longer be tolerated. In the wake of the following decision against the FTC by the District Court 

in Denver on different grounds, I again fully support the action of the FCC to move 

forward in enforcing the list so that American consumers are not left to suffer while 

lawyers argue. 

19 

While the flurry of legal activity over the past few days has at least temporarily 

cast the future of the Do-Not-Call list into doubt, I remain committed to protecting 

this commonsense, basic protection for the American consumer. Thank you, Mr. 

Chairman. 

The CHAIRMAN. Thank you. We’d like you to stay. There are less 

damages done when you are here than over there. 

[Laughter.] 

The CHAIRMAN. Senator Wyden. 

Senator WYDEN. Thank you, Mr. Chairman. Let me go right on 

this last point the Chairman made about immediate help for the 

public. People are sitting out there and they’re in effect running 

around this legal mulberry bush, waiting for some immediate relief. 

I said in my opening statement, Mr. Muris, that I’m going to 

push the telemarketing industry very hard to meet you all halfway 

with respect to working out the provisions for getting access to the 

list, because it seems to me then you could at least give some 

measure of relief immediately to the public that is so frustrated as 

they go up and down this legal roller coaster. 

What exactly do you need the industry to do now in this effort 

to work with them to try to get the public some relief? 

Mr. MURIS. Well, obviously the easiest thing would be to withdraw the lawsuits, but that won’t happen. But I think with the 

telemarketers—it’s in their interest to try to get themselves—and 

if I could explain for a minute that the position that they’re in— 

some of the telemarketers have the list, some of them do not. And 

given what some states have said and what Chairman Powell has 

said, the telemarketers are in a difficult position. They’re almost 

damned if they do, damned if they don’t. 

The most important thing for us is to get the stay. If we don’t 

get the stay, we will move to try to set up a voluntary system, but 

given what the telemarketers said in court yesterday I fully expect 

that they would regard that as in contempt of the judge’s order, 

and if they take that position they may well prevail. 

Senator WYDEN. Making the argument that this is an act that’s 

regarded as contempt, that really sort of guts the whole spirit of 

trying to do anything voluntary, doesn’t it? 

Mr. MURIS. Well, I agree. It appears that the telemarketers are 

saying one thing in public and another thing in court. 

Senator WYDEN. What’s your advice to the two areas of consumers that are following this? I mean, you’ve got consumers who 

have signed up and they want to know what’s going to happen, 

you’ve got consumers who are watching all of this and trying to 

make sense of it. Gentlemen, what would you advise the public in 

those two groups? 

Mr. POWELL. I think number one, it’s important to give the consuming public a sense that its government is fully committed to effectuating the list, and while it’s wrangling with legalese it’s difficult for them to appreciate that we ultimately do believe and I believe this in the strongest terms it’s all fixable. Whether it’s all fixable to perfection by tomorrow or each day as we deal with each 

court case, I am quite confident that it’s all fixable through the 

partnership of the Congress and the regulatory agencies, number 

one. 

20 

Number two, I think we are going to consider very seriously providing consumer information that will help people understand what 

they really can expect and what they really can’t expect to the extent that we can nail that down about the court cases. There is ambiguity here. For those consumers who get called by people who got 

to access the list before it was enjoined, they may have every right 

to seek enforcement protection. If they got called from people who 

don’t have the list and those people are not permitted by law to get 

the list, it may be difficult to enforce. They’re not poor consumers 

are not going to know the difference. That’s going to be for us to 

help them sort out. 

If I could, Senator, you invited a question a moment ago and I 

want to suggest something else. It would be enormously helpful if 

the industry would commit to voluntarily providing the list to the 

FCC when it needs it for purposes of enforcement. I can’t get the 

list from Chairman Muris right now because of a court order, but 

there are people who have gotten it, and to the extent that we receive complaints, if I’m able to have evidentiary proof as to disputes then we can certainly advance enforcement with respect to 

those who are entitled to it. 

Senator WYDEN. One last question for this round. If you buy the 

reasoning by the Denver court, how do you uphold the junk fax 

law, for example? I mean, the junk fax law relates only to commercial faxes. Aren’t we really headed, if you buy that kind of reasoning, for a variety of areas that are going to certainly not go over 

well with the consuming public? Mr. Powell? 

Mr. POWELL. Senator, I think it’s very interesting you say that 

because in the opinion last night the judge himself cited the junk 

fax law, in some sense almost favorably. In that case, he was citing—the fax laws are solely FCC rules and they flow from Congress’ TCPA statute in which Congress made findings distinguishing the charitable and political speech from commercial 

speech, and the judge cited a case in the Eighth Circuit in which 

the constitutionality of those rules was upheld, upheld because it 

found that Congress had adequately made those distinctions. 

I would argue that the rules under the TCPA have been challenged constitutionally before and have been upheld, because the 

congressional findings were given deference. That’s why we continue to be optimistic that our rules that do flow from the congressional statute have a fair chance of prevailing on a First Amendment basis. 

Senator WYDEN. Thank you, Mr. Chairman. 

The CHAIRMAN. Senator Allen. 

Senator ALLEN. Thank you, Mr. Chairman. I thank both these 

chairmen for their leadership on this issue and also their articulate 

knowledge of the law. You’ve become lawyers and counsel here. 

It strikes me as one of the key reasons and one of the things we 

can do other than write an amicus brief, which I think would be 

very important in answering the Chairman’s question, what can we 

do. We’ve passed laws. You get frustrated when people who are appointed for life to the bench make decisions that can’t understand 

plain law passed by the House and the Senate and signed by the 

President. 

21 

Now, we can file an amicus brief. You mentioned, Chairman 

Powell, in the situation of the faxes, and there is a distinction. 

There’s a, as I recollect in the fax situation, there is a difference 

for non-profits, there’s a difference if somebody’s a member of an 

organization and a business relationship and all the rest, which is 

a different situation in my view, a distinction with this situation 

as far as the do-not-call where these are completely unsolicited 

calls from folks that have no relationship whatsoever to the household that they’re calling. 

Do you, in your estimation and reading of these court decisions, 

believe that we may need to, as a Congress, pass this law again 

with greater Congressional findings differentiating or explaining 

why we feel that commercial speech is different than that of charitable or non-profit calls? 

Mr. POWELL. Yes, sir. I think there are three points. One, you 

may have done enough, stay tuned, we may win in the Tenth Circuit just on that point that Congress did make those findings and 

they’re entitled to deference. By the way, I’ll even read you a quick 

passage from the Eighth Circuit case. When Congress enacted the 

TCPA, it had found that non-commercial calls are less intrusive to 

consumers because they are more expected. The Supreme Court 

has indicated Congress can rely on various forms of effort to distinguish between different types of speech. The legislative history 

shows the TCPA’s distinction between commercial and non-commercial. Fax advertising is relevant to the goal of reducing the 

costs and interference associated with unwanted faxes. We might 

win already because Congress made those faxes. 

Second, if they are inadequate, I think that is one of Congress’ 

responses. It can make those findings more explicit, more distinct, 

consistent with Supreme Court law, and probably cure that infirmity. 

And third, I think something Senator McCain mentioned, I suppose if this is the basis for unconstitutionality, Congress would be 

always free to eliminate the exemptions, which are the source of 

the constitutional infirmity, that there are no exceptions for these 

other purposes. But I don’t think we’d want to do that, but I think 

that certainly would be an option available to you. 

Senator ALLEN. Thank you. Chairman Muris and Chairman Powell, with all the legal actions taking place, and we’re talking about 

amicus briefs and Congressional findings, insofar as the general 

public is concerned, could you share for the people of America, the 

51 million who have signed up on this do-not-call registry, what 

can they do now to stop these unwanted calls? 

Mr. MURIS. Well, there is the glass is half-full here. Because we 

created the registry and have 51 million phone numbers on it, and 

because it appears that most and perhaps almost all of the large 

telemarketers have the list, and because of what Chairman Powell 

is doing, they can expect starting tomorrow some significant diminution in phone calls, assuming that the telemarketers comply 

with the law, and there are some other things that they can do. 

They can obviously complain to the FCC and their state attorney 

general if they receive calls and they can ask to be placed in addition on the company-specific do-not-call list, which we can still enforce as well as Chairman Powell as well as the States. That’s a 

22 

much more cumbersome way to avoid the calls than the registry 

because you have to opt out seller by seller, but there are steps 

that they can take, and because we created the registry, because 

Chairman Powell has taken the aggressive steps that he’s taken, 

I do believe that there will be some significant reduction. 

Senator ALLEN. What’s the website for the, if you could, can they 

do this online? 

Mr. MURIS. Can you complain? 

Senator ALLEN. No, obviously complain online, but insofar as the 

company by company? 

Mr. MURIS. Well you have to—two things have to happen. You 

have to ask the company, you have to say please put me on your 

company-specific do-not-call list, then they have to call you back 

again. We have given advice, and if the stay is upheld we will probably try to do this more aggressively to have consumers in fact take 

those two steps, which is to write down when they asked to be 

placed on the company-specific list, who the seller was, and then 

if they’re called again to do that and they can complain to us and 

to the FCC and they can do it online. They can go to ftc.gov, and 

file a complaint. 

Senator ALLEN. Thank you. 

Mr. POWELL. Senator, I would say it the way I would say to a 

consumer. I think there are four things you ought to be cognizant 

of because I think consumers can be our partners in this effort. 

Chairman Muris already mentioned, if I was called, immediately 

request to be put on the company-specific list. Two, if called, inform 

them that you’re on the national do-not-call list and ask if they 

have it. That can be an important source of deterring those who 

have it and nonetheless violating it. It will also be important evidentiary information if they exercise their third right, which is to 

let the FCC know and potentially file a complaint. 

And I think four, also as Chairman Muris mentioned, they 

should explore what State-specific lists they have. I think if consumers are vigilant and are well-informed, they will be an important part of deterring the worst instincts of the commercial entities 

who may attempt to circumvent the regulation. 

Senator ALLEN. Well they may do all of that. Thanks for the advice, but their food will be cold by the time they go through that, 

but thank you for that advice. 

The CHAIRMAN. How do you get that information out to people? 

Mr. POWELL. Well, we’re going to explore that. We do something 

at the FCC called consumer alerts. We try to put together a very 

simply speaking informational. We’ll put it on the Web, we’ll circulate it to news organizations, we’ll speak publicly—— 

The CHAIRMAN. Maybe we could get some—— 

Mr. POWELL. We’ll get you copies. 

The CHAIRMAN.—consumer groups to be involved with their mailing lists. 

Mr. MURIS. Yes, Senator. One very important form of information, which I believe virtually all of your offices with us and I assume with the FCC, are very good about containing links on your 

website to the sorts of things that we do. 

The CHAIRMAN. We’ll try and get that information on every Senator’s website. 

23 

Senator ALLEN. The reason I asked the question, Mr. Chairman, 

that hopefully newspapers, for example, will publish the answers 

of these two gentlemen on how consumers can be at least vigilant 

and protected while this court bumbles through their decisions. 

The CHAIRMAN. Senator Nelson? Thank you. 

Senator NELSON. Thank you, Mr. Chairman. You know, this 

Committee, along with you all, have grappled with the problem of 

spam and there are very similar issues here of invasion of privacy, 

of in some cases making your ability to use the Internet almost 

non-existent because it’s loaded up with so much spam. Either one 

of you want to draw some parallels here? 

Mr. MURIS. Well, we have talked repeatedly about spam. We’ve 

testified. We’ve brought over 50 cases involving spam. We’re the 

only people in the world that like spam. You can go to our website 

and send us spam. We get over 100,000 a day. We’ve collected millions of spam. We use it to understand spam, the patterns in it. 

We’ve brought over 50 cases. 

I think, unfortunately, the distinction is that the spammers are 

mostly already violating, I mean overwhelmingly already violating 

lots of laws, including our own, where the telemarketers are mostly 

not doing that, at least I hope that continues through tomorrow. 

Now, Senators, this Committee, Senators Wyden and Burns have 

a bill that, although we would write some changes in it, we think 

the bill would be helpful. We think technology would be helpful. 

At the end of the day, however, unlike the telemarketing problem, the spam problem is a much tougher problem, and although 

legislation would be helpful, I don’t think it would solve the problem. Now, I believe I have as much standing as anyone in the country to comment on a do-not-spam list and I do not think a do-notspam list would be a useful idea. I would advise consumers not to 

waste their time to put their name on it because, again, the overwhelming majority of spammers are already violating laws. The 

problem is we can’t find them because of the anonymity of the 

Internet. I believe the legislation that you are working on and 

they’re working on in the House would be helpful, but it will not 

solve the spam problem. 

Senator NELSON. Understandably, but there are certain types of 

spam that according to normal standards are egregious, and I 

think that’s going to be the intent of the legislation coming out. 

Mr. MURIS. Yes, absolutely. 

Senator NELSON. And when that legislation gets to the floor, 

since they wanted to keep the Committee bill clean coming out of 

the Judiciary Committee on the penalties, the most egregious 

types, I will be offering an amendment to make this one element 

of the RICO Act, the Racketeering Influenced Corrupt Organization 

Act, so you can go after the criminal enterprise, for example, the 

child pornography spam that’s going on. 

Mr. MURIS. We are working right now with the United States attorneys using current laws, current criminal laws, to go after 

spammers, including the kind that you mentioned. There are criminal enforcement provisions, I believe, in the Committee’s bill. The 

Justice Department has made some suggestions that I think would 

improve them. I understand the Committee is working with the 

24 

Justice Department. I think probably the most important part of 

the bill would be to make appropriate criminal enforcement easier. 

Senator NELSON. Well, this is a whole new day of invasion of 

folks’ privacy. Let me ask you this, Mr. Chairman Muris, does this 

Colorado court’s decision impact your ability to enforce your FTC 

rules on deceptive and abusive calls? 

Mr. MURIS. Well, absolutely, it shuts us down in terms of the donot-call registry. If you take the logic of the judge, and this is what 

Chairman McCain was going at, the logic of what the judge has 

said, given the non-profit distinction in our statute, calls into question an enormous amount of what we do. On the other hand, we 

would argue there’s a sharp distinction because deceptive practices 

and fraudulent practices should have no constitutional protection. 

But there are wide ramifications from the argument that he 

made and I would hope the judge, for example, would defer to the 

findings of the Congress, but reading his opinions, even though he 

made that argument in the context of the Eighth Circuit opinion, 

that’s hardly a model of consistency with other statements that he 

made. 

Senator NELSON. Would you expand on your comments earlier 

about if this decision stood, whether or not the states would be able 

to enforce their do-not-call lists? 

Mr. MURIS. There are several problems that the states have. The 

logic of this decision eliminates virtually all the State lists because 

they make various distinctions, most of them in terms of charities, 

but there are other distinctions that they make. The practical problem, many of the states, 13 or 14, have adopted our rule as theirs 

and they can’t get it now. 

There’s also a potential problem, and I believe the telemarketers 

will argue this, that their failure to be able to get our registry read 

with the FCC statute, and this would be an extraordinarily unfortunate combination, would prohibit them from enforcing their laws. 

The CHAIRMAN. Senator Ensign. 

STATEMENT OF HON. JOHN ENSIGN, 

U.S. SENATOR FROM NEVADA 

Senator ENSIGN. Thank you, Mr. Chairman. Just a couple of 

comments on the whole idea of free speech and what is free speech. 

Chairman Powell, you mentioned a willing audience. I would even 

take that, you know, we’ve discussed the difference between commercial and charity speech I mean, I don’t know, it seems to me 

that if somebody didn’t want the charitable speech coming into 

their house they shouldn’t have to listen to that as well, same 

thing with political speech. 

I understand that Congress’ intent was simply because sometimes you try to get something done and there would be a lot of 

opposition to have included the charitable and the political speech 

in this, but as far as if a person doesn’t want to be bothered, just 

like a person doesn’t want to go vote, they don’t have to go vote. 

If they don’t want to participate and donate to charities, they don’t 

have to. I mean, that is part of freedom. That seems to me that 

that is their right to be able to do that. It would seem to me even 

constitutionally that that should be able to be structured regardless 

of how we do it. 

25 

But also, if Congress just wants to limit the commercial, then 

Congress has the right to be able to do that. It just seems another 

one of these court decisions where you just scratch your head and 

you wonder what some of these judges are thinking when they’re 

making some of these rulings. I don’t understand how somebody 

can say that you’re limiting free speech by somebody voluntarily 

signing up on a list that says, please don’t call me. That just makes 

no sense, I think, to people, and I think that’s the reason Congress 

responded so quickly and in such a bipartisan way to, when the 

first ruling came out, to make sure that it was clear that Congress 

was authorizing the do-not-call list. 

You mentioned, Chairman Muris, until we get all this straightened out in the courts, you know, companies have this do-not-call 

list that you can sign up with, but like you said, then they have 

to call you back and the problem is that there are 5,000 companies. 

I don’t think that anybody wants to make 5,000 phone calls out 

there to make sure that they are off of every list. 

Mr. MURIS. Well, the way they would have to do this—I agree 

completely with your opening remarks—but they way they would 

have to do this is not to call everybody, they would have to make 

notes as people call them. It is more cumbersome. It’s why that 

rule has existed for a long time—it’s why we proposed this national 

rule. When I, two years ago I spent time, for example, with Senators Wyden and Lansdowne talking about privacy, Congress wanted the Federal Trade Commission to be the privacy agency. We 

looked at the privacy issues and decided that this was the single 

most important step we could take that would practically affect 

Americans. 

There are more Americans interested in this than practically everything I know of since the Seabiscuit-War Admiral match race in 

1938, when during working hours a third of Americans stopped and 

listened to it on the radio. There aren’t very many things that 

touch the average person the way this has, and it’s because the 

company-specific list is cumbersome. 

We believe that people are aroused so much that we could do 

more enforcement, but Chairman Powell has rightly and aggressively said, if you have the list, we’re not talking voluntary here, 

we’re talking under his rules, you have to comply. 

Senator ENSIGN. Chairman Powell, could you maybe comment on 

what we can do; what do you see over the next several months? I 

know that you’re going to be doing what you can enforcement-wise. 

Do you see at the end of the day though if this particular judgment 

held up where you couldn’t make the distinction, so then would 

Congress I mean, it would seem to me if that held up through the 

courts, Congress’ only choice then, if we really wanted a do-not-call 

list would be to include the political and the charitable speech. Isn’t 

that—wouldn’t that be a logical assumption? 

Mr. POWELL. It could be. I think that it’s important again to emphasize the fluid nature of the litigation. Each day we learn another piece, and I think there are a few more shoes to drop before 

we’re sure what the full range of cards we have to play are. One 

of them is, if the FTC is successful in getting the Third Circuit to 

stay this, it’s a different ball game. If we don’t, it’s a different kind 

of ball game. 

26 

I think there are three potential scenarios here: both of our rules 

are struck down as unconstitutional; the FTC’s are and ours are 

not, but then we just have a mechanical administrative problem of 

how we have the list operational with one agency with constitutional rules, one without; or ultimately both are sustained and we 

can go back to doing it the way we designed it. 

I think what I’m encouraged by, at least so far in the court opinions, is the reasons that they are asserting for finding constitutional infirmity are reasons that need not necessarily be unfixable, 

which is, if there is the possibility for either the regulatory agency 

or Congress to more clearly explain the distinction between commercial and non-commercial, it may be able to pass constitutional 

muster. And I think ultimately your point, which is, I think, that 

under that under the logic of the district court’s decision, if those 

exemptions were not there the ruling would have gone another 

way. 

So it’s not for me to tell Congress which of those it would choose, 

but I do think ultimately that is one option it will have, whether 

to not allow those exemptions in order to cure the finding of the 

court. But my caution here is we’re going to have to see what are 

the full range of cards we can play, and I think that will happen 

quick. I think in the next several days we’ll basically know the parameters. 

Senator ENSIGN. Mr. Chairman, I have to leave, but could I just 

ask a followup? It’s a very quick question and it has to do with the 

relationship with someone, a consumer walks in, whether it’s a 

hotel, let’s use a real simple example. Somebody comes in, as a veterinarian, comes into my animal hospital. Now they’re a client. Do 

you think that under the do-not-call list that that relationship is 

protected? Let’s say that I happen to be running a geriatric special 

for check-ups for animals as they get older and we want to be able 

to call our clients and offer it. That’s something that they want to 

hear about. Do you think that that relationship is protected under 

the do-not-call list? 

Mr. POWELL. Within very careful limits. I mean, I think one of 

the things that Chairman Muris and I both worked on in our rules 

is to have a narrowly defined zone of existing business relationships in which calls are permitted within certain parameters if 

there are certain indicia of an existing relationship and it’s not allowed to last forever in the context of the telemarketing rules. It’s 

an 18 and 3 rule, we could get into the details of it, but I think 

that’s a scenario that we contemplated. 

I mean, I think it’s important that we went after protecting consumers but we were cautious to protect legitimate business relationships as well. This isn’t a jihad for its own sake. I think it’s 

to protect consumers within the parameters of fair business and 

legal practice, and one of them is, sometimes you have a business 

relationship with a consumer or citizen and we shouldn’t stop communications between people who have established relationships 

within limits. And I think the scenario you’re describing is probably one of them. 

Mr. POWELL. And indeed that, just to add a quick comment, that 

relationship is in the consumer’s interest to know. 

27 

Senator ENSIGN. Correct, right, and that’s what I want to make 

sure that as we go forward, if we are able to implement the do-notcall list, that that kind of relationship is protected. Thank you, Mr. 

Chairman. 

The CHAIRMAN. Thank you. I want to thank both of you, as I said 

before, for your remarkable reactions to this difficult situation, 

which is obviously of enormous importance to most Americans. 

Chairman Powell, we’d like to get that four-point list from you and 

try and get as wide a dissemination as possible so Americans at 

least have some recourse, and of course we can all hope that the 

Court of Appeals will issue a stay and this hearing will have been 

rendered a pleasant exercise. Thank you very much for being here. 

Mr. MURIS. Thank you. 

Mr. POWELL. Thank you, Mr. Chairman. 

The CHAIRMAN. Our next panel is Dean Rodney Smolla of the 

University of Richmond School of Law at the University of Richmond; Mr. Gerald Cerasale, who is the Senior Vice President of 

Government Affairs for the Direct Marketing Association; Mr. Tim 

Searcy of the American Teleservices Association; Mr. James Guest 

is the President of the Consumers Union; and Mr. Lee Hammond, 

a Member of the Board of Directors, American Association of Retired Persons. 

Welcome to all of the witnesses. Thank you for joining us here 

today, and Dean Smolla, is that the proper pronunciation? 

Mr. SMOLLA. It is, Senator, thank you. 

The CHAIRMAN. Thank you for joining us today and please proceed. 

STATEMENT OF RODNEY A. SMOLLA, DEAN, UNIVERSITY OF 

RICHMOND SCHOOL OF LAW 

Mr. SMOLLA. Thank you, Mr. Chairman and Members of the 

Committee. It’s my pleasure to have this opportunity to address the 

Committee. I’ve submitted substantial written testimony, but I’d 

like to focus primarily on the constitutional conflicts that various 

members have focused upon. 

I think at the outset it’s important to acknowledge that there are 

two constitutional values here that are deeply cherished by the 

American people: the right to privacy, particularly in the home and 

freedom of speech. And we always struggle in our society to accommodate those two values when they are in conflict and it’s not always easy to do so. 

It’s important, I think, for us to understand, as many people 

have observed, that as technology increases the capacity for various 

people to invade our privacy in American life, the law has got to 

have a kind of a cost-of-living increase sort of index. You have to 

be able to escalate the legal tools that government can bring to 

bear so that the average person can keep some measure of human 

dignity and some measure of privacy, notwithstanding the technological ingenuity of those who use devices to invade it. 

The district court’s decision in Denver, I think it’s important to 

emphasize, absolutely did not say that any form of do-not-call list 

registry would be unconstitutional. As the chairman has focused 

upon, the district judge’s opinion is actually relatively narrow. It is 

not that you can not have a do-not-call list. What the district judge 

28 

is concerned about are the distinctions that reside in the list between the commercial callers and the non-commercial callers. 

So really I think the key is whether that’s right or wrong as a 

matter of constitutional law, whether it’s likely to prevail or not 

prevail in the Tenth Circuit and conceivably in the Supreme Court, 

and also to ask the question whether there are any fixes, either administrative fixes or Congressional fixes that might take the oxygen out of the argument and provide a quick rescue, perhaps a rescue even before this reaches the Tenth Circuit. And I do have a 

suggestion as to a possible fix that might moot the controversy and 

I’ll get to that in a second. 

Let me first very quickly talk about the merits of the district 

judge’s opinion. I think that the district judge did undervalue one 

of the Supreme Court precedents that’s the backdrop of this, the 

Rowan case, which is a relatively old case from the 1960s involving 

the primitive old world of bulk mail, you know, the LL Bean catalogs and all the things that we all get in the mailbox. In that decision in Rowan, the U.S. Supreme Court very powerfully endorsed 

the notion of privacy, and if you read that opinion by Chief Justice 

Burger, you see the Court unequivocally rejects the notion that 

freedom of speech carries with it the right to go into someone’s 

home and engage in speech conduct that they do not wish to receive. 

Now, the district judge says, yes, Rowan is precedent and it looks 

a lot like a controlling precedent, but the district court in Denver 

said there’s a distinction, and the distinction is that Rowan was a 

neutral statute. All Rowan did was give you the power to block 

senders, whereas in this one, Congress and the agencies have put 

their thumb on the scale by singling out commercial speech and 

treating it disfavorably. 

But that overlooks a key element in Rowan. There was a contentbased distinction in Rowan. Rowan dealt only with sexually explicit 

speech. It was only lewd or lascivious speech that you had a right 

to block, so there is a precedent involving content discrimination 

even in Rowan that the district court never addressed, and I think 

it makes that decision arguably vulnerable when the case goes to 

the Tenth Circuit on that ground. 

Now let’s give the district court its due. I know it’s a very unpopular decision and it’s easy to attack it, but there is an important Supreme Court precedent on the other side of this that I think 

has to be contended with, and it’s a more modern decision. It’s the 

Discovery Network case and it’s a very simple case to understand. 

It involved the City of Cincinnati’s effort to keep newspaper kiosks, 

news racks, off the streets in Cincinnati, to reduce the clutter that 

comes when you come around the corner and there are 9 or 10 

news racks there. 

So the city said, we’re going to not allow news racks, but we’re 

going to have an exception for true newspapers, USA Today, Wall 

Street Journal, Cincinnati Post or Cincinnati Inquirer, they get to 

stay but the commercial handbill news racks, the real estate—— 

The CHAIRMAN. It was a way of getting around at the sexually 

explicit stuff too, right? 

29 

Mr. SMOLLA. Well, it was commercial and there often would be, 

that is to say the commercial handbills might be for adult stores 

and that sort of thing, exactly, Senator. 

The U.S. Supreme Court said you can’t do this, and the reason 

you can’t draw this commercial/non-commercial distinction is that 

clutter is clutter, that the same news rack was going to bother your 

eyes or bother your traffic flow no matter what was in it, so the 

distinction in that case between commercial speech and non-commercial speech didn’t cut it, the Supreme Court said, because there 

was nothing in the character of the speech as commercial or noncommercial that connected to the harms. 

Now, just to give the district judge in Denver his due, so you understand what you’re up against, all right, the district judge said 

essentially the same logic applies here. What’s the real problem? 

The problem is you’re sitting down at dinner and the phone rings 

and then you get up and you can’t get rid of the person and you’ve 

got to deal with it and then you go back, and it’s just an invasion 

of your privacy, it’s an intrusion. 

Or maybe there’s this other problem. Somebody’s on the phone 

with you and they’re trying to mess with you, they’re trying to trick 

you, there’s fraud, there’s overbearing, and there’s another element 

of annoyance. And what the district court said is, really it doesn’t 

matter whether that’s a credit card vendor that’s called you or a 

political fundraiser that’s called you, or my alma mater, the University of Richmond, trying to raise money, or a charity trying to 

raise money. It’s still a phone call. A phone call at 6 in the evening 

is a phone call and they hit on privacies the same and the district 

judge says there’s no evidence really to prove that the commercial 

callers are worse, that they’re more vexatious, that they’re more 

overbearing and so on, and so he said that’s a lot like the news 

rack issue and that’s the kind of distinction that the First Amendment forbids. 

Now that may not be right. That could get reversed in the Tenth 

Circuit. It could get reversed in the Supreme Court. But objectively, someone that’s not here representing any interest group or 

any vested economic interest, I have to say it could win, that is to 

say it’s not some outlying, ridiculous application of these Supreme 

Court precedents. And the Discovery Network case is a more recent 

case, a more modern case that brings to bear all of the new protections for advertising that the Supreme Court has adopted over the 

last 20 years, whereas Rowan is an older case. 

So let me end with a possible creative solution. If you look at this 

from the point of view of the big picture, not how will the stay work 

out in the next 24 hours and so on, but the long picture, one option 

would be to just give up on the do-not-call registry. That’s not tenable, we don’t want to do that in our society, it’s not appropriate. 

People want this protection and in some way or another undoubtedly they will get it. 

A second would be to go for the full blanket do-not-call list, just 

everything is activated. That would eliminate the First Amendment 

problem that the district judge identified, but as the Chairman of 

the FTC has pointed out, even that’s tricky because it has the bad 

effect of squelching more speech, including speech that’s clearly at 

the core of the First Amendment, political speech, charitable 

30 

speech, and so on. So that’s not necessarily the most appealing solution, though it’s probably a fairly safe one from a First Amendment perspective, though I think there would be some argument 

from some groups. 

Third possibility is just to hold the line, argue vociferously that 

this distinction is tenable and that the cases like Discovery Network ought not apply in this situation. 

A fourth possibility, and there has been a hint of it already, 

would be to adopt a kind of hybrid, and this is my creative suggestion. Congress could amend the empowerment statutes here to say 

every consumer can do any of the following: can block all the calls; 

can block only the commercial calls but let the charitable calls and 

political calls come through; can block the political calls and charitable calls, block those but allow the commercial calls I mean there 

are some people that like Home Shopping Network better than C– 

SPAN, you know, so let the people that want to do that do that and 

essentially you create a kind of menu. You can block as much or 

as little as you want. 

There are parallels to this. We do something like this with the 

V-chip. We do something like this with filtering software. This 

would be the true ultimate empowerment. It would place in the 

hands of every family the decision as to how much to block or how 

much not to block and I think it would eliminate this content-based 

distinction argument that has been troublesome and vexatious no 

matter how you play it. 

So that’s the gist of my comments on the constitutional issue and 

of course later I’ll be happy to take questions. 

[The prepared statement of Mr. Smolla follows:] 

PREPARED STATEMENT OF RODNEY A. SMOLLA, DEAN, UNIVERSITY OF RICHMOND

SCHOOL OF LAW

I. Introduction 

I wish to thank the Committee for this opportunity to present testimony on the 

issues implicated by recent judicial rulings concerning the national telemarketing 

‘‘Do Not Call’’ registry, developed by both the Federal Trade Commission and Federal Communications Commission. 

The purpose of this testimony is to (1) briefly summarize the legislative and administrative history of the registry; (2) review the current legal status of the registry in light of recent litigation developments; (3) explain the First Amendment doctrines that place the constitutionality of the registry in doubt, (4) offer a prediction 

as to the likelihood that the registry will survive constitutional challenge in its current form; and (5) offer suggestions as to legislative ‘‘fixes’’ that could substantially 

improve the probability that the registry will survive judicial review. 

II. Legislative and Administrative History of ‘‘Do Not Call’’ 

Congress in 1991 passed the Telephone Consumer Protection Act, 47 U.S. § 227 

(‘‘TCPA’’). The law was enacted ‘‘to protect residential telephone subscribers’ privacy 

rights to avoid telephone solicitations to which they object.’’ Id. § 227(c)(l). The Federal Communications Commission was directed to promulgate regulations that restricted the use of automatic telephone dialing systems. Id. § 227(b)(1). 

In 1992, the FCC adopted rules pursuant to the TCPA, but declined to create a 

national ‘‘do-not-call’’ list. The FCC instead required telemarketers to adopt company-specific do-not-call lists. Under this system a consumer who did not wish to 

receive telephone solicitations from a particular company could request that the 

telemarketer remove that consumer’s telephone number from the telemarketer’s list. 

By 2002, however, the FCC appeared to realize that its company-specific approach 

had failed to provide adequate privacy protection to consumers, and the Commission 

issued a Notice of Proposed Rulemaking requesting comment on whether the Commission should revisit its decision regarding the establishment of a national do-notcall list. 

31 

Three years after the enactment of the TCPA, Congress in 1994 enacted a second 

important piece of legislation, the Telemarketing and Consumer Fraud and Abuse 

Prevention Act, 15 U.S.C. §§ 6101–6108 (‘‘TCFAP’’). The law instructed the Commission to promulgate rules prohibiting deceptive and other abusive telemarketing acts 

or practices and to include in such rules a definition of deceptive telemarketing acts 

or practices. Id. § 6102(a) (1) and (2). The TCFAP, enforced by the FTC, did not 

apply to activities that were outside of the jurisdiction of the FTC, such as certain 

financial institutions, common carriers, air carriers and nonprofit organizations, or 

insurance companies. In 1995 the FTC adopted rules implementing this legislation, 

rules that did not contain any national do-not-call registry. 

In January 2002, the FTC issued a Notice of Proposed Rulemaking that recommended the creation of a national do-not-call registry, to be maintained by the 

FTC, as well as rules that addressed the problem of ‘‘abandoned calls’’ resulting 

from the use of predictive dialers by telemarketers. In January 2003, the FTC promulgated final rules establishing a nationwide do-not-call registry and specified requirements for the use of ‘‘predictive dialers.’’ The FTC found that the previous company-specific do-not-call rules, which permitted a consumer to request that his name 

be removed from a company’s call list, were insufficient to protect consumers from 

unwanted calls. The FTC found that telemarketers interfered with consumers’ attempts to be placed on company-specific lists by hanging up on them or ignoring 

their request. The FTC noted that the prior practice placed too much burden on consumers who had to repeat their do-not-call request with every telemarketer who 

called, that the company-specific list continually exposed consumers to unwanted 

initial calls which had significantly increased in numbers since adoption of the original FTC rules, and that consumers had no method to verify that their name had 

been removed from the company’s list. In a move that has proven enormously significant in subsequent litigation, the FTC exempted charitable organizations from 

the do-not-call requirements. The FTC made this exception partly in deference to 

the heightened First Amendment protection afforded charitable speech. The FTC 

also found that abusive telemarketing practices of the sort the registry sought to 

combat were more likely to be undertaken by commercial telemarketers than those 

soliciting charitable and political contributions. In an important concession, however, the FTC admitted that the interest of protecting privacy did not justify a distinction between commercial and charitable telemarketing calls, on the reasoning 

that consumer privacy was equally invaded by both types of calls. The FCC followed 

suit, ultimately adopting rules that paralleled those of the FTC. 

Congress strongly endorsed this movement in 2003, enacting the Do-Not-Call Implementation Act, Pub. L. No. 108–10, 7 Stat. 577. (‘‘Implementation Act’’). The Implementation Act provided, among other things, that the FTC could promulgate regulations establishing fees sufficient to implement and enforce the provisions of its 

national do-not-call registry. 

The first significant judicial setback to this momentum was a decision on September 23,2003 by the United States District Court for the Western District of Oklahoma, U.S. Security v. Federal Trade Commission,—F.Supp.2d-, 2003 WL 22003719 

(W.D. Okla. 2003). In U.S. Security the District Court held that the FTC lacked the 

statutory authority to create its national registry. Whereas Congress had clearly 

given the FCC the green light to adopt a national registry in acting the TCPA, the 

District Court reasoned, no similar explicit authority existed under the TCFAP 

granting parallel authority to the FTC. In reaching this judgment, the District 

Court was unmoved by the fact that the Implementation Act appeared to tacitly endorse the FTC’s national registry, holding that Congress’ appropriation and fee-authorizing legislation was not a ‘‘ratification’’ of the FTC’s actions sufficient to constitute statutory authorization for the registry. 

A more significant judicial blow to the national registry carne two days later when 

the United States District Court for the District of Colorado held, in Mainstream 

Marketing Services, Inc., v. Federal Trade Commission,—F.Supp.2d-, 2003 WL 

2213517 (D. Colo. 2003), held that the national do-not-call registry violated the First 

Amendment. The District Court in Mainstream Marketing held, however, that the 

FTC did have statutory authority to promulgate its ‘‘abandoned calls’’ regulations. 

(The abandon calls regulations were not challenged on First Amendment grounds, 

but merely on statutory authority grounds.) The Colorado District Court in Mainstream Marketing did not specifically address the issue that had been decided by 

the Oklahoma District Court in U.S. Security—the question of whether the FTC had 

statutory authority to create the do-not-call registry. Generally, however, the reasoning of the Colorado District Court on the statutory authority question was in tension with the reasoning of the Oklahoma District Court, with the Colorado District 

Court taking a far more generous view of the authority of both the FCC and FTC 

32 

to enact telemarketing rules in a coordinated inter-agency effort to deal with the 

privacy issues posed by telemarketing practices. 

III. Statutory and Constitutional Issues Posed by Do-Not-Call 

A. Statutory Authorization 

In the long run the question of statutory authority is relatively trivial. It is plain 

that this Congress intends to grant to both the FTC and FCC the authority to establish a national registry, and to the extent that the alleged defect found by the Oklahoma District Court in the FTC’s statutory authority is at all sound, that defect was 

easily cured by additional legislation passed on September 29 flatly granting such 

authority to the FTC. It is my view that under the Implementation Act adequate 

statutory authority already existed, and there was no mistaking congressional intent on this point. The problem, however, has now been mooted by the new additional legislation that unequivocally authorizes the FTC to enforce the national registry. 

B. Constitutional Issues 

1. The Protection of Privacy 

The do-not-call registry poses a conflict between two sacred American values, both 

of constitutional dimension, the right of privacy and freedom of speech. Privacy may 

be the most important emerging right of this new century. As technologies make it 

increasingly difficult for Americans to maintain their privacy, evolution in administrative, statutory, and constitutional law is necessary to keep pace, preserving privacy as an essential element of human dignity. Just as we make adjustments for 

inflation in cost-of-living indexes, we may need to think of ‘‘escalation clauses’’ in 

our legal protection for privacy. As the power to impinge on privacy increases, legal 

principles must escalate to meet the challenge, preserving the power of the average 

person to fight back against unwelcome intrusions. See, e.g., Katz v. United States, 

389 U.S. 347, 351 (1967) (holding that the Fourth Amendment’s guarantee against 

unreasonable searches extended to cover electronic eavesdropping, even though the 

framers of the Constitution could not have contemplated such an electronic search, 

because the Fourth Amendment was intended to protect ‘‘people, not places.’’) 

The privacy of the home has always been at the core of English and American 

conceptions of privacy. The sacredness of the home as a ‘‘castle,’’ a fortress of privacy surrounded with moats of constitutional and common-law protection, is legendary and centuries old. See Semayne’s Case, 77 Eng. Rep. 194, 195 (K.B. 1604) 

(‘‘[T)he house of every one is to him as his castle and fortress . . .’’); William 

Cuddihy & B. Carmon Hardy, A Man’s House Was Not His Castle: Origins of the 

Fourth Amendment to the United States Constitution, 37 Wm. & Mary Q. 371, 400 

(1980) (noting that the belief that ‘‘a man’s house is his castle’’ found expression at 

least as early as the sixteenth century in English jurisprudence). William Pitt, in 

a speech before Parliament, declared the home a sanctuary against the force of government, demarking the line at which the brute power of the state must yield to 

the principle of privacy: ‘‘The poorest man may, in his cottage, bid defiance to all 

the forces of the crown. It may be frail; its roof may shake; the wind may blow 

through it; the storm may enter; the rain may enter; but the king of England may 

not enter; all his force dares not cross the threshold of the ruined tenement.’’ Id. 

at 386 (quoting Thomas M. Cooley, Constitutional Limitations 299 n.3 (1868)); see 

also 4 William Blackstone, Commentaries 223 (photo. reprint 1967) (1769) (‘‘And the 

law of England has so particular and tender a regard to the immunity of a man’s 

house, that it stiles it his castle, and will never suffer it to be violated with impunity. . . . For this reason no doors can in general be broken open to execute any 

civil process; though, in criminal cases, the public safety supersedes the private.’’). 

This tradition was the backdrop of the Fourth Amendment, and its guarantee of 

the right of the people to be secure in their ‘‘persons, houses, papers, and effects’’ 

against unreasonable searches and seizures. U.S. Const. amend. IV; see also Silverman v. United States, 365 U.S. 505, 511 (1961) (‘‘The Fourth Amendment, and the 

personal rights which it secures, have a long history. At the very core stands the 

right of a man to retreat into his own home and there be free from unreasonable 

governmental intrusion.’’) (citing Boyd v. United States, 116 U.S. 616, 626–30 

(1886); Entick v. Carrington, 19 Howell’s State Trials 1029, 1065 (C.P. 1765)). 

This solicitude for the home, originally conceptualized as a bulwark against the 

force of the state, has evolved into a broader concept, in which the home is seen 

as an essential to one’s autonomy and privacy, a place of respite from the cruel 

world. In the words of Judge Jerome Frank: ‘‘A man can still control a small part 

of his environment, his house; he can retreat thence from outsiders, secure in the 

knowledge that they cannot get at him without disobeying the Constitution. That 

33 

is still a sizable hunk of liberty—worth protecting from encroachment A sane, decent, civilized society must provide some such oasis, some shelter from public scrutiny, some insulated enclosure, some enclave, some inviolate place which is a man’s 

castle.’’ United States v. On Lee, 193 F.2d 306, 315–16 (2d Cir. 1951) (Frank, J., dissenting). Virtually everyone engaged in the debate over the do-not-call registry will 

concede that powerful privacy interests are stake. Uninvited telephone solicitations 

are highly intrusive, particularly when they come during family time such as dinner 

and early evenings in the home. 

Indeed, in a decision with many parallels to the do-not-call registry, decided in 

a simpler time in our history and dealing with old-fashioned land mail, the Supreme 

Court acknowledged the right of the consumer to reject unwanted mail. In Rowan v. United States Post Office Department, 397 U.S. 728, (1970), the Court upheld a 

statute that allowed an addressee to refuse mail from any sender of ‘‘erotically 

arousing or sexually provocative’’ material by notifying the local postmaster, who 

then instructed the sender to remove the addressee’s name and address from its 

mailing list under penalty of law. Noting that the purpose of the statute was to 

eliminate governmental involvement in any determination concerning the content of 

the materials, allowing the addressee complete and unfettered discretion in electing 

what speech he or she desired to receive, the Court sustained the law. The First 

Amendment right to speak, the Court reasoned, was only circumscribed by the addressee’s affirmative act in giving notice that he or she no longer wished to receive 

mail from the sender. Most importantly, the Court categorically rejected the argument that a vendor has the right to send unwanted material into the home of another. 

2. Protection of Commercial Speech 

The vital privacy interests that animate the do-not-call registry must be balanced 

against the competing First Amendment protection for freedom of speech, a protection that often is dependent upon the ability of the speaker to initiate the message, 

making a preliminary attempt to engage the listener or reader even though the message may not have been invited. 

Commercial telemarketing is a form of ‘‘commercial speech.’’ Contemporary commercial speech doctrine is governed by the four-part test first articulated in Central 

Hudson Gas & Electric Corp. 3v. Public Service Commission, 447 U.S. 557 (1980): 

At the outset, we must determine whether the expression is protected by the 

First Amendment. For commercial speech to come within that provision, it at 

least must concern lawful activity and not be misleading. Next, we ask whether 

the asserted governmental interest is substantial. If both inquiries yield positive 

answers, we must determine whether the regulation directly advances the governmental interest asserted, and whether it is not more extensive than Is necessary to serve that interest. 

Id. at 563–64. The arc of modern commercial speech jurisprudence is unmistakable: in decision after decision the Supreme Court has advanced protection for advertising, repeatedly striking down regulations grounded in paternalistic motivations. See, e.g., Thompson v. Western States Medical Center, 122 S.Ct. 1497, 1505 

(2002) (striking down restrictions on pharmaceutical advertising); Lorillard Tobacco 

Co. v. Reilly, 533 U.S. 525,554–555 (2001) (striking down some and sustaining some 

restrictions on tobacco advertising); Greater New Orleans Inc. v. United States, 527 

U.S. 173 (1999) (striking down casino gambling advertising limitations); 44 

Liquormart, Inc. v. Rhode Island, 517 U.S. 484 (1996) (striking down liquor advertizement restrictions); Rubin v. Coors Brewing Company, 514 U.S. 476 (1995) (striking down beer advertising regulations); Ibanez v. Florida Dep’t of Business and Professional Regulation, 512 U.S. 136, 147 (1994) (striking down restrictions on accountancy advertising); Edenfield v. Fane, 507 U.S. 761 (1993) (striking down commercial speech limitations on accountants); Cincinnati v. Discovery Network, 

Inc.,507 U.S. 410 (1993) (striking down restrictions on newsracks for commercial flyers and publications); Peel v. Attorney Registration and Disciplinary Commission of 

Illinois, 496 U.S. 91(1990) (regulation banning lawyer advertisement of certification 

by the National Board ofTrial Advocacy as misleading unconstitutional); Shapero v. 

Kentucky Bar Ass ’n, 486 U.S. 466 (1988) (regulation banning solicitation for legal 

business mailed on a personalized or targeted basis to prevent potential clients from 

feeling undue duress to hire the attorney unconstitutional); Zauderer v. Office of 

Disciplinary Counsel of the Supreme Court of Ohio, 471 U.S. 626 (1985) (striking 

down some and upholding some restrictions on lawyer advertising); Bolger v. Youngs 

Drug Product Corp.,463 U.S. 60 (1983) (statute banning unsolicited mailings advertising contraceptives to aid parental authority over teaching their children about 

birth control unconstitutional); In re R.M.J., 455 U.S. 191 (1982) (regulations limVerDate Nov 24 2008 12:20 Sep 09, 2014 Jkt 075679 PO 00000 Frm 00037 Fmt 6633 Sfmt 6621 S:\GPO\DOCS\89661.TXT JACKIE
34 

iting the precise names of practice areas lawyers can use in ads and identifying the 

jurisdictions lawyer is licensed in as misleadingly unconstitutional); Central Hudson 

Gas & Electric Corp. v. Public Service Commission, 447 U.S. 557 (1980) (striking 

down restrictions on advertising statements by public utilities); In re Primus, 436 

U.S. 412 (1978) (striking down restrictions on solicitation of legal business on behalf 

of ACLU); Bates v. State Bar of Ariz., 433 U.S. 350 (1977) (regulation banning lawyer advertisement of prices for routine legal services as misleadingly unconstitutional); Linmark Associates, Inc. v. Township of Willingboro, 431 U.S. 85 (1977); 

(regulation banning placement of ‘‘for sale’’signs in the front lawns ofhouses in order 

to prevent the town from losing its integrated racial status unconstitutional);· Virginia State Board of Pharmacy v. Virginia Citizens Consumer 

Council, Inc., 425 U.S. 748 (1976) (striking down restrictions on pharmaceutical advertising); Bigelow v. Virginia, 421 U.S. 809 (1975) (striking down restrictions on 

abortion advertising). 

3. Content-Based Distinctions and the Charitable Speech Exception 

The District Court in Mainstream Marketing did not hold that any form of do-notcall registry would be unconstitutional. Indeed the District Court explicitly acknowledged that the protection of privacy was a substantial government interest sufficient 

to satisfy the second prong of Central Hudson, and also acknowledged that the registry directly and materially advanced that interest, satisfying the third prong ofthe 

test. Rather, the District Court rested its decision on a non discrimination principle 

that cuts across many First Amendment areas, a principle that generally looks with 

great skepticism at content-based distinctions. See, e.g, R.A.V. v. City of St. Paul, 

505 U.S. 377 (1992). 

This antipathy toward content-based discrimination applies to commercial speech 

regulation. In a key precedent, Cincinnati v. Discovery Network, Inc. 507 U.S. 410 

(1993), the Supreme Court struck down an ordinance that engaged in content-based 

distinctions similar to those in the do-not-call registry. In Discovery Network the 

City of Cincinnati enacted an ordinance prohibiting the distribution of commercial 

handbills on public property. The ordinance effectively granted distributors of traditional ‘‘newspapers,’’ such as the Cincinnati Post, USA Today, or The Wall Street 

Journal, access to public sidewalks through newsracks, while denying equivalent 

newsrack access to the distributors of commercial magazines and handbills, such as 

publications for apartment or house rentals or sales. The ordinance was designed 

to reduce the visual and spacial clutter of newsracks. The constitutional difficulty, 

however, was that no principled distinction could be drawn between the clutter 

caused by a USA Today newsrack and one caused by a real estate magazine. Clutter 

was clutter, and a newsrack was a newsrack, and the content of the speech inside 

the rack bore no relation to the city’s environmental or aesthetic interests. The Supreme Court pointedly rejected the notion that government could simply ‘‘pick on’’ 

commercial speech, making such speech bear a disproportionate burden, merely because the Central Hudson test contemplates somewhat reduced constitutional protection for commercial speech. The harm the government sought to address simply 

had nothing to do with the commercial or non-commercial character of the speech 

that was regulated. 

The District Court in Mainstream Marketing applied similar logic. An unwanted 

telephone call during dinner is an unwanted telephone call during dinner. An abusive or overbearing or fraudulent call is an abusive or overbearing or fraudulent 

call. Whether the caller is a commercial vendor, a solicitor for a charity, or a political fundraiser, the essential hit on privacy interests remains the same. Similarly, 

the District Court could find nothing in the record before it to support the supposition that commercial telemarketers are as a class are more prone to abuse or 

fraudulent practices than non-commercial telemarketers. Following the straightforward logic of Discovery Network, the District Court thus struck down the do-notcall registry. 

The District Court distinguished Rowan largely on the ground that in Rowan Congress left to the addressee the power to make the content judgments to block mail 

from senders. As the District Court was careful to note: ‘‘Were the do-not-call registry to apply without regard to the content of the speech, or to leave autonomy in 

the hands of the individual, as in Rowan, it might be a different matter. As the 

amended Rules are currently formulated, however, the FTC has chosen to entangle 

itself too much in the consumer’s decision by manipulating consumer choice and favoring speech by charitable over commercial speech. The First Amendment prohibits 

the government from enacting laws creating a preference for certain types of speech 

based on content, without asserting a valid interest, premised on content, to justify 

its discrimination. Because the do-not-call registry distinguishes between the indistinct, it is unconstitutional under the First Amendment.’’ 

35 

IV. The Future of Do-Not-Call in its Present Form 

The do-not-call registry is enormously popular with the American people and with 

Members of Congress, and it is firmly grounded in the enormously important and 

ongoing American battle to preserve human privacy and dignity. It is a concept 

worth saving. 

Nevertheless, the analysis of the District Court in Mainstream Marketing is, if 

one will indulge the pun, within the mainstream. Mainstream Marketing is not a 

radical extension of existing law, not a ‘‘stretch’’ in which existing doctrines are applied in some exotic or implausible manner, not an aggressive exercise in inappropriate judicial activism. 

This is not to say that the District Court’s opinion in Mainstream Marketing 

would certainly withstand analysis on appeal. Although the District Court distinguished Rowan, for example, it is worth noting that even in Rowan the law was 

not entirely content-neutral. Congress had singled out sexually explicit messages for 

special treatment. At the same time, Rowan itself is a relatively old case by First 

Amendment standards, decided before modem commercial speech doctrines evolved, 

decided before Discovery Network, and decided before the strong current First 

Amendment doctrines heavily disfavoring content-based distinctions were well-developed. 

The First Amendment principles forbidding content-discrimination, and the specific commercial speech principles that forbid discriminating against commercial 

speech on grounds that are unrelated to the commercial content of the speech, are 

well-entrenched and laudable components of our current constitutional jurisprudence. There are sound reasons why courts look with great skepticism at contentbased distinctions, and sound reasons why these principles apply to advertising and 

commercial speech. There is probably no principle more central to our First Amendment tradition than the notion that the government ought not ‘‘pick and choose’’ 

among messages, particularly when the values it seeks to vindicate bear no demonstrable relationship to the content of those messages. 

In short, modem First Amendment doctrine tends to favor an ‘‘all or nothing’’ form 

of regulation. There is, admittedly, an irony here, and a heavy social cost. To eliminate the distinction between non-commercial and commercial telemarketing would 

actually burden more speech. One might plausibly argue that the current form of 

the do-not-call registry is thus actually preferable to a complete ban. Reinforcing 

this argument, one might argue that given the especially high place that charitable 

and political speech enjoy inour constitutional constellation, there is positive con- stitutional value in carving out an exception for those categories. Seen this way, the 

current do not-call registry regime does not discriminate against commercial speech 

so much as it discriminates in favor of political or charitable solicitations. While 

these arguments do have some appeal, in the end they appear to be in tension with 

current First Amendment doctrines, especially decisions such as Discovery Network. 

No one, of course, can predict with complete confidence what the United Stated 

Court of Appeals for the Tenth Circuit, or possibly the Supreme Court, will do when 

the Mainstream Marketing decision is reviewed on the merits. Congress would be 

prudent not to proceed, however, on the supposition that Mainstream Marketing is 

some kind of ‘‘outlying’’ decision that is obviously wrong and heading for certain reversal. To the contrary, the decision appears consistent with emerging constitutional 

principles. While the District Court’s application of Discovery Network and Rowan 

is not free from dispute, there is certainly a substantial possibility that the District 

Court’s holding would be sustained on appeal. 

V. Legislative Solutions 

Admittedly, it may well be painful to extend the reach of the do-not-call registry 

to non commercial solicitations. It is my view, however, that the simplest and cleanest way to maximize the probability that the do-not-call registry will withstand constitutional attack is to pattern the registry after the postal rules upheld in Rowan, 

permitting consumers to block all unsolicited calls, from whatever source. 

There are other somewhat more creative (and perhaps less certain) possibilities. 

Congress might authorize the promulgation of agency rules that would allow consumers to block all solicitations, or choose between blocking only commercial or noncommercial solicitations. This would be a ‘‘hybrid’’ model, somewhere between the 

current FTC and FCC approach and the approach in Rowan. Because it would empower consumers to make the choice, it would largely mitigate the content-based 

discrimination found unconstitutional by the District Court in Mainstream Marketing. At the same time, it would operate, somewhat like television ‘‘V-Chips’’ or 

computer filtering software, to allow some consumers to selectively permit some 

messages in while keeping others out. For those consumers to who do not mind receiving non-commercial telemarketing calls but object to commercial solicitations (or 

36 

the reverse, those who do not mind receiving commercial calls but dislike charitable 

or political calls), the option would be available to block one category but not the 

other. 

VI. Conclusion 

I appreciate the opportunity to address the Committee on this important issue. 

In the short time and space available I have not attempted to canvass every nuance 

of the issues posed, or every aspect of the decisional law, but I do hope my testimony will assist the Committee in looking at this dispute with additional perspective as it considers possible action responsive to the ongoing judicial developments. 

The CHAIRMAN. Thank you very much, Dean, and that’s a remarkable idea. We thank you. Mr. Cerasale. 

STATEMENT OF JERRY CERASALE, SENIOR VICE PRESIDENT, 

THE DIRECT MARKETING ASSOCIATION, INC. 

Mr. CERASALE. Thank you, Mr. Chairman, thank you, Members 

of the Committee, for giving me the opportunity to be here. 

I represent the Direct Marketing Association, been around since 

1917. We have marketers that use every channel of communication 

to try and reach individuals, including the telephone, and we’ve 

been in this space for quite a while. 

In 1985, we started our own national do-not-call list and it has 

8 million phone numbers on it and our survey has shown that it 

stops about 80 percent of the phone calls. 

But let me start on this—what we’ve been saying for an entire 

week now since the first court decision came down we want our 

members to respect the wishes of American consumers. They, millions of them, have put 50 million numbers on the list and they 

don’t want to be called. It makes business sense to treat our customers the way they want to be treated and not call them, but we 

continue, on the other side we continue to believe that we have to 

settle the constitutional issues here. If they’re not settled, then 

anytime there’s enforcement, those constitutional issues come up 

and it’s going to hinder enforcement. 

So the court cases must go on and we must find a solution, a constitutional solution to this issue, but we do want to respect the 

wishes of the American public. Now last week we said we were 

asking all our members to voluntarily use the list, and that was 

before these latest court decisions and the determination of the 

Federal Trade Commission that we can not use the list, we can not 

share the list with anyone, and based on contract, even people that 

have the list can’t use it for others. For example, a teleservice bureau that has the list, has downloaded it, paid for it, can not use 

it for its members for its clients, excuse me that it does not know 

have already paid for it, have permission to use the list. 

So that’s a problem we have and we’re willing to work with the 

Government to try and see if we can fix that problem. At the moment, according to what Chairman Powell has said, most of our 

members, our large members, do have the list and will use the list 

so that a vast majority of the telephone calls from our members 

will be covered by FCC enforcement. Also, there are certain states 

that are not part of many states that are not part of the FTC list 

and those enforcements will remain in place. 

We do have a problem with those members of ours who do not 

have the list and the problem of them wanting not to call these 

37 

people, but you cannot find they cannot legally use those numbers. 

And we have the problem with members who don’t have the list 

making phone calls and still potentially being liable even though 

they can’t find out who they’re not supposed to call from the situation of the private right of action in the TCPA and enforcements 

by the States. 

So we’re in a conundrum ourselves and we need this confusion 

to be settled, but it has to be settled in a constitutional way. Otherwise, any list, any attempt of American consumers to say they do 

not want to receive information will be—could eventually be 

thwarted. 

Now, telemarketing is big in the economy. It’s $106 billion a year 

from outbound telemarketing to consumers. There are millions of 

Americans that are employed and even voluntary compliance is 

going to clearly have some effect on our members, where there are 

going to be loss of jobs and loss of sales. But whatever the case, 

our view is that we should be listening to the American public. 

Now, we also raised issues and went to court ourselves for issues 

other than just the constitutional issues that we’ve been talking 

about. We believe that if there’s going to be any list it should be 

a list that is authenticated, and we think that the Internet signup that the Federal Trade Commission has put into place and 

we’ve told them this before as well—is not authenticated. You can 

put any number on this list, it can be a business number, it can 

be someone else’s number, it can be your neighbor’s number, and 

there’s no check whatsoever. So we think that there needs to be 

some authentication. Now, if you call by phone on the list that the 

Trade Commission has put together, that is authenticated, so we 

think that’s a problem. 

And the other thing that we are concerned about is what the two 

Chairmen talked about, the proliferation of lists that we think that 

we need as a telemarketing industry, if there’s going to be a list 

there be one, not a national list plus 50 State lists and so forth, 

so that’s the other area that we had raised, other reasons that we 

went to court on. 

So in conclusion, I want to thank you very much for giving me 

the opportunity to be here and reiterate again that if we can, we’d 

like to work with the Government during this period of trying to 

figure out the constitutional question of seeing if we can voluntarily find out how to satisfy the wishes of the American consumers. Thank you very much. 

[The prepared statement of Mr. Cerasale follows:] 

PREPARED STATEMENT OF JERRY CERASALE, SENIOR VICE PRESIDENT, 

THE DIRECT MARKETING ASSOCIATION, INC. 

I. Introduction 

Good morning, Mr. Chairman and members of the Committee. I thank you for the 

opportunity to appear before your Committee as it examines the issues surrounding 

the national Do-Not-Call Registry. I am Jerry Cerasale, Senior Vice President for 

The Direct Marketing Association, Inc. (‘‘The DMA’’). 

The DMA is the largest trade association for businesses interested in direct, database, and interactive marketing and electronic commerce. The DMA represents 

more than 4,500 companies in the United States and 54 foreign nations. Founded 

in 1917, its members include direct marketers from 50 different industry segments, 

as well as the non-profit sector. Included are catalogers, financial services, book and 

magazine publishers, retail stores, industrial manufacturers, Internet-based busiVerDate Nov 24 2008 12:20 Sep 09, 2014 Jkt 075679 PO 00000 Frm 00041 Fmt 6633 Sfmt 6621 S:\GPO\DOCS\89661.TXT JACKIE
38 

nesses, and a host of other segments, as well as the service industries that support 

them. 

Let me begin by stating what we have stated all week: The DMA respects the 

wishes of all Americans who desire not to be called by telemarketers. This is evidenced by the fact that The DMA has had its national do-not-call registry, the Telephone Preference Service (‘‘TPS’’), in place since 1985. Any consumer who wants to 

reduce the amount of unwanted national telemarketing calls they receive can have 

their name placed on the TPS for that purpose free of charge. We estimate that the 

TPS applies to more than 80 percent of all telemarketing calls. The TPS currently 

contains the telephone numbers of 8 million consumers. 

We continue to believe that the FTC list is fatally flawed by important constitutional defects. We continue to strongly support the resolution of these issues in 

court. 

In response to the court decisions last week, and further supporting our commitment not to call individuals who have expressed their interest not to be called, The 

DMA had called for all members to voluntarily comply with the registry. We were 

subsequently informed by the FTC staff that The DMA could not distribute the registry to its members for voluntary compliance because of legal requirements under 

the FTC’s rule that prohibit such distribution. Since then there have been additional 

developments in the courts regarding the FCC implementation of the registry. 

Our current understanding is that the FCC rule remains m effect and that those 

telemarketers which have already obtained the registry must not call numbers on 

the list. As a result of the court rulings last week, telemarketers are no longer able 

to obtain the registry. The effect of this is that there are telemarketers in the contradictory situation of not being able to access the registry while being subject to 

enforcement and private causes of action. We hope to work with the FCC and FTC 

to resolve this dilemma and establish a means for all telemarketers to obtain the 

registry, so that no telemarketers will be locked out of honoring consumer requests. 

II. Telemarketing is a Critical Component of the U.S. Economy 

While we respect the requests of consumers not to be called and are working hard 

towards that goal, it is important to keep in perspective that many American consumers respond favorably to telemarketing. Consumers respond to telephone service 

offerings, credit card offerings, magazine subscriptions, travel discount and many 

other businesses that are the mainstay ofthe economy. This fact is evident in the 

dollar amounts consumers spend purchasing products through telemarketing sales. 

The DMA estimates that outbound telemarketing sales result in 106 billion dollars 

annually. 

Similarly, telemarketing provides employment to many Americans. Employment 

and employment growth rate in the telemarketing industry are equally impressive. 

In 2001, the telemarketing industry that markets to consumers was estimated to 

employ 4.1 million workers. A large percentage of telemarketing employment is female, working mothers, students, minorities and handicapped—all critical employment categories. 

Telemarketing also adds competitiveness to the U.S. economy. It provides information on new products and services and on prices, and clearly sparks consumers’ 

interests to buy. As one example, telemarketing is a valuable resource to rural families and others without access to certain products or services. Also, by making information about prices widely available, it promotes price competition in the marketplace. Likewise, telemarketing provides access to goods and services not generally 

sold in the retail market. As a means of advertising, telemarketing is a cost-effective 

means of introducing new products into the marketplace. 

III. Steps Must Be Taken to Help Ensure the Accuracy of a Do-Not-Call List 

In addition to the significant constitutional and regulatory issues, The DMA filed 

its legal challenge in part based on concerns that we believe are fundamental to the 

implementation and operation of a national registry. We believe that it is imperative 

that the registration process ensures the accuracy of telephone numbers that are 

placed on the do-not-call registry. Internet registration is subject to abuse. It is our 

understanding and belief that there are not sufficient protections in place in connection with Internet registration to: (1) verify that the numbers were submitted by the 

persons to whom the numbers are assigned; (2) determine whether the individual 

submitting the number has permission to submit the numbers; or (3) determine that 

the numbers are not business numbers (which are not candidates for inclusion on 

the registry). 

The FTC registration process does not allow numbers to be removed from the registry via the Internet. The FTC’s rationale for not allowing removal via the Internet 

is that there is the potential for abuse and that the FTC cannot authenticate indiVerDate Nov 24 2008 12:20 Sep 09, 2014 Jkt 075679 PO 00000 Frm 00042 Fmt 6633 Sfmt 6621 S:\GPO\DOCS\89661.TXT JACKIE
39 

viduals that removal of telephone numbers. This same rationale and potential for 

abuse exists for submitting numbers to the registry. We believe that the FTC should 

apply the same authentication standard to submission and removal. 

IV. There Should Exist One Uniform National Do-Not-Call Registry 

The DMA also believes that there should exist one uniform national registry. The 

FTC and FCC registry does not create one uniform list. Rather, it leaves in place 

dozens of state do-not-call lists, resulting in a complex compliance task for the many 

legitimate industries that rely on telemarketing as a means to contact consumers. 

The current framework, in which telemarketers are required to comply with numerous registries, creates significant economic and operational burdens on businesses. A preferable approach. would limit these burdens by creating one registry. 

We believe that such an approach would in no way limit the consumer protections 

of individuals on the registry, but would provide a workable system for both businesses and consumers. 

V. Conclusion 

Again, we want to reiterate our commitment to the American people not to call 

those who have expressed their desire not to be called. We thank the Chairman and 

the Committee for the opportunity to express the views of The DMA. We know that 

Congress and this Committee will continue to monitor this issue closely and we look 

forward to working with you. 

JERRY CERASALE

Jerry joined The DMA in January 1995, as Senior Vice President, Government Affairs. He is in charge of The DMA’s contact with the Congress, all Federal agencies 

and state and local governments. Prior to joining The DMA he was the Deputy General Counsel for the Committee on Post Office and Civil Service, United States 

House of Representatives. He served for 12 years at the Postal Rate Commission 

as Legal Advisor to Chairman Steiger and most recently as Special Assistant to the 

Commission. He was an attorney advisor to Federal Trade Commission Chairman 

Steiger. Prior to the PRC he was employed in the Law Department of the Postal 

Service. He received his B.A. in Government and Economics from Wesleyan University, Middletown Connecticut and his J.D. from the University of Virginia School of 

Law. He served in the U.S. Army from 1970 to 1972. 

He is a Vice Chair of the Postal Matters Subsection of the Administrative Law 

and Regulatory Practice Section of the American Bar Association. He serves on the 

Board of Directors of the Mailers Council. He was a member of the Federal Trade 

Commission Advisory Committee on On-Line Access and Security. 

The CHAIRMAN. Thank you, sir. Mr. Searcy, welcome. 

STATEMENT OF TIM SEARCY, EXECUTIVE DIRECTOR, 

AMERICAN TELESERVICES ASSOCIATION (ATA) 

Mr. SEARCY. Thank you, Mr. Chairman, Senators, thank you for 

giving us the opportunity to testify before you today on a matter 

of great importance to both U.S. consumers and business alike, the 

formation of a Federal do-not-call registry. 

I’m the Executive Director of the American Teleservices Association, known as the ATA, which is the largest and only association 

dedicated exclusively to the interests of the teleservices industry. 

We are enjoying our 20th anniversary this year and represent 

firms involved in the industry in a wide variety of means. 

As elected officials, I’m certain you know how difficult it is to get 

a complete message delivered in a sound bite through the media. 

Of course my recent time in the media has not improved my selfesteem very much as I was recently told by a Bloomberg reporter 

that I had become America’s pinata, so I certainly understand what 

you folks must go through on an occasional basis. 

Teleservices enjoys a unique role in providing competition in the 

United States marketplace for goods and services. Long-distance 

40 

cable and the recent boom of refinancing in the mortgage arena can 

in part give thanks to teleservices for spreading the competitive 

message and cost-effectively to millions of consumers throughout 

the United States. Our industry has grown because it is extremely 

effective. If consumers are not purchasing we would not be calling, 

and thankfully we would not be here today. 

However, in addition to the consumer choice and competition, 

teleservices has also provided jobs. In the U.S. today, 6.5 million 

people make a living either making calls to or taking calls from 

U.S. consumers. Although we know that not all jobs in our industry 

are concerned with calling consumers at home, we know the symbiotic nature of teleservices means that every employee in our industry is impacted by legislation and regulation. 

Mr. Chairman, in your home state of Arizona, it has been reported that 126,000 men and women make all or part of their living on the telephone. We know that individuals employed by our 

industry will be hard-pressed to find alternative employment if the 

volume of calls were to be significantly decreased by a national donot-call registry. We employ primarily ethnic minorities, the physically handicapped, single mothers, students, seniors, disabled combat veterans, and others, that are not likely to quickly find gainful 

employment somewhere else. By our estimate, 2 million people will 

lose their jobs if the Federal do-not-call list is enforced. 

If you examine the people that use teleservices, it is all our 

neighbors, not just the big call centers that you see in newspaper 

pictures. The people that will be decimated by these regulations 

are also the real estate agent seeking new listings, the insurance 

agent calling the client referral, or even the local handyman looking to fix your gutters. Imagine how our fragile economy will react 

to much higher unemployment, the loss of tax revenue, and the inability of consumers to purchase goods and services. Even a percentage of the impact we anticipate could be crippling to our already fragile economy. 

In terms of the ATA’s Federal case, we have always strongly believed that there are important constitutional issues to be considered as we contemplate the Federal Government’s involvement in 

the teleservices industry. I believe that experts are in attendance 

today that are equipped to address this issue, so I will only state 

the ATA’s position as a matter for the record. 

We believe that both the FTC and FCC promulgated rules that 

are unconstitutional because they unfairly restrict legitimate commercial speech and seek to make a distinction between two kinds 

of speech. In essence, because a ringing phone can not distinguish 

who is calling, when the Federal Government restricts who the appropriate caller is and the content of the message, it violates the 

First Amendment. By including the exemption for charities and 

politicians, the FTC and FCC have created two classes of speech, 

which history tells us is clearly unconstitutional. 

For a long time, the ATA, as the voice of the industry, has attempted to engage proper regulatory agencies and other policymakers to find appropriate means to address consumer and business interests. Our comments to the FTC and FCC have been ignored completely. Even more importantly, the congressional requirements for an economic impact study, including the potential 

41 

effects on small business regarding new regulations and the necessary regulatory paperwork assessments have also been ignored. 

Of course, if you would like to see copies of the comments that we 

have made to those organizations, we would be happy to send them 

to you. [Editor’s note: Comments were sent and are retained in 

Committee files as part of the official record of this hearing.] 

Thank you, sir. In a rush to judgment, the regulatory agencies 

have pushed through the kind of policy that creates confusion without true relief. Additionally, there are numerous operational problems with the list. Not only is the list prone to fraudulent additions 

of phone numbers from people without legal authority, it lacks fundamental verification allowing for abuse as well. Although it is 

easy to get on the list, enforcement agencies have made little to no 

provision for interested individuals to take their names off the list. 

If that is not enough, because no cellular database itself, as well 

as no national disconnect data base, it is virtually impossible to 

keep the list current and accurate. 

Behind all the media, they hype, and the emotion rhetoric sits 

a real problem, a problem that we acknowledge and recognize. How 

do we bring relief to the U.S. consumers that are not interested in 

unsolicited phone calls? Although I can not propose today a comprehensive set of self-regulation guidelines, I can outline areas in 

which all interested parties should begin to dialogue toward policy 

that makes sense. 

Clearly as a practical matter we need to enforce the laws that 

have already been written and educate consumers to make use of 

the company-specific do-not-call lists. Senator, in particular I noticed that Chairman Powell had identified a number of areas that 

would provide relief immediately and I encourage you to provide 

the educatory means by which that can be disseminated, because 

we are in agreement with those. Those are current laws and we 

support them. 

Second, it is only fair to seek voluntary and publicized use of existing rules by bodies that are currently exempted in regulations, 

like charities and politicians. Any voluntary or legislative action 

should be supported by sufficient economic impact studies that 

weigh the interests of all involved. 

Finally, we should apply intelligence to other issues like calling 

frequency and persistence beyond someone’s adamant statements 

of disinterest to create a healthier environment for the productive 

calling that does take place. 

In conclusion, I recognize that as Senators you are engaged in 

truly important issues related to our men and women overseas, our 

economy, and our domestic security. It is gratifying to know that 

you are willing to adjust your schedules to listen to the important 

issues related to this segment of the U.S. commerce. Thank you for 

your time, and Mr. Chairman, thank you for letting me share with 

you the views of the telemarketing industry. 

[The prepared statement of Mr. Searcy follows:] 

PREPARED STATEMENT OF TIM SEARCY, EXECUTIVE DIRECTOR, AMERICAN

TELESERVICES ASSOCIATION (ATA) 

Senators, thank you for giving me this opportunity to testify before you today, on 

a matter of great importance to U.S. consumers, and business alike: the formation 

42 

of a Federal Do-Not-Call Registry. I am the Executive Director of the American 

Teleservices Association (ATA), which is the largest and only association dedicated 

exclusively to the interests of the teleservices industry. We are enjoying our 20th 

anniversary this year, and represent approximately 650 firms involved in the teleservices industry. Our membership is tremendously diverse, and encompasses all aspects of telemarketing, customer service, market research, political calling, non-profit fundraising and technical product support. 

We also represent the firms that provide long distance, equipment providers, 

outsourced teleservices firms, consultants and in-house teleservices operations like 

banks, major retailers, cable television, local telephone service, etc. 

As elected officials, I am certain you know how difficult it is to get a complete 

message delivered in a sound bite through the media. For that reason, at times the 

ATA’s opposition to the Do-Not-Call Registry has been mischaracterized, and I truly 

appreciate the opportunity to set the record straight Of course, my recent time in 

the media limelight has not improved my self-esteem, as I was recently told by a 

Bloomberg reporter that I had become America’s Pinata. 

Setting the Record Straight 

Since the inception of the Federal Trade Commission’s (FTC) Telemarketing Sales 

Rule and the Federal Communication Commission’s (FCC) Telephone Consumer 

Protection Act, over a decade ago, the ATA has worked with its members to educate 

them on issues related to compliance with Federal laws. Additionally, we are often 

the source for understanding the many state laws that impact our member’s business interests. 

Teleservices enjoys a unique role in providing competition in the U.S. marketplace 

for goods and services. When the break-up of the long distance monopoly occurred, 

it was teleservices that lead the way in rapidly opening the marketplace to lower 

priced alternatives. When cable television moved from its infancy, teleservices was 

one of the main advertising mediums that delivered the benefits of more channel 

selection to U.S. consumers. The recent boom of refinancing in the home mortgage 

arena can in part give thanks to teleservices for spreading the competitive message 

quickly, and cost effectively to millions of consumers throughout the United States. 

Teleservices provides entrepreneurs and new market entrants alike, the opportunity to compete effectively against entrenched incumbents. Everyone recognizes 

that advertising is an embedded cost in the price of a product. Therefore it is logical 

that lower cost marketing alternatives would also yield lower prices for consumers. 

In an increasingly challenged economy, and with advertising costs escalating, lower 

cost marketing alternatives like teleservices have greatly increased over the last few 

years. But more importantly, our industry has grown because it is extremely effective. If consumers were not purchasing, we would not be calling, nor be here today. 

Indeed, the current marketplace coupled with the decreasing cost of long distance, 

have created a situation under which Americans are experiencing more calls now 

than in the past. However, it is important to remember that all forms of traditional 

and alternative advertising have experienced similar growth, as companies struggle 

to bring products to market, and continually develop creative means to do so. 

In addition to consumer choice and competition, teleservices has also provided 

jobs. In the U.S. today, 6.5 million people make a living either making to or taking 

phones calls from U.S. consumers. Although we know that not all jobs in our industry are concerned with calling consumers at home, we know that the symbiotic nature of teleservices means that every employee in our industry is impacted by legislation and regulation. Mr. Chairman, in your home state it has been reported that 

126,000 men and women make all or part of their living on the telephone. We know 

that individuals employed by our industry will be hard pressed to find alternative 

employment if the volume of calls were to be significantly decreased by a national 

Do-Not-Call Registry. 

We employ primarily ethnic minorities, the physically handicapped, single mothers, students, seniors, disabled combat veterans and others that are not likely to 

quickly find gainful employment somewhere else. By our estimate, 2 million people 

will lose their jobs if Federal DNC list is enforced. 

Teleservices is a pervasive channel of marketing in the United States, and it has 

been difficult for government agencies to use arcane business classifications to get 

a handle on the appropriate size of our business. But it only makes sense that you 

must include everyone that makes phone calls to consumers as a primary form of 

marketing in the projected impact. If you examine the people that use teleservices, 

it is all of our neighbors, not just the big call centers shown in newspaper pictures. 

The people that will be decimated by these regulations are also the real estate agent 

seeking new listings, the insurance agent calling the client referral, or even the local 

handyman looking to fix your gutters. 

43 

Certainly, the large outsourced call centers make up an important fraction of our 

business, and account for 7–8 percent of the industry, but the rest of the industry 

is made up of employees that would not be classified as telemarketers, but as bank 

employees, insurance agents, cable representatives and the like. The immediate impact is 2 million jobs lost of the 6.5 million people employed in the industry, but 

the downstream impact would be much greater. Imagine how our fragile economy 

will react to much higher unemployment, the loss of tax revenue, and the inability 

of consumers to afford to purchase goods and services. Even a percentage of the impact we anticipate could be crippling to our economy. 

Constitutionality 

In terms of ATA’s Federal case, we have always strongly believed that there are 

important constitutional issues to be considered as we contemplate the Federal government’s involvement in the teleservices industry. I believe that experts are in attendance today that are equipped to address this issue, so I will only state the 

ATA’s position as a matter for the record. We believe that both the FTC and FCC 

promulgated rules that are unconstitutional because they unfairly restrict legitimate 

commercial speech, and seek to make a distinction between two kinds of speech. In 

essence, because a ringing phone cannot distinguish who is calling, when the Federal government restricts who the appropriate caller is, and the content of the message, it violates the 1st Amendment. By including the exemption for charities and 

politicians, the FTC and FCC have created two classes of speech, which history tells 

us is clearly unconstitutional. 

What Does This Mean? 

Despite the extraordinary benefits that teleservices provides, and the clear constitutional considerations, the last year has been a flurry of regulation, litigation 

and now legislation and further litigation. In advance of Federal action, we already 

had 37 state Do-Not-Call Registry laws that come in a wide variety of shapes and 

sizes. It is not surprising that the regulatory and legislative bodies have tried to 

craft policy to address the legitimate needs of consumers. Unfortunately, an unconstitutional and one-size-fits all approach is not the answer. 

For a long time, the ATA as the voice of industry has attempted to engage proper 

regulatory agencies and other policy makers to find the appropriate means to address consumer and business interests. Our comments to the FTC and FCC have 

been ignored. Even more importantly, the Congressional requirements for an economic impact study, including the potential effects on small business of new regulations, and the necessary regulatory paperwork assessments have also been ignored. 

In a rush to judgment, the regulatory agencies have pushed through the kind of policy that creates confusion without true relief. 

The current standings in court have also created confusion for all parties involved. 

The FTC has a list that it continues to take names for, although a Federal judge 

has deemed that unconstitutional. The FCC was prepared to enforce with fines, 

based on a list that the same judge ruled was unconstitutional. Fortunately, Judge 

Nottingham further clarified his ruling in response to an FTC request for a ’stay’, 

and has again made it clear that the FCC is not to use the FTC list for the purpose 

of enforcement. Again the court has made it clear that neither direct nor indirect 

violation of the U.S. Constitution will be allowed. 

Operational Problems With The List 

Additionally, there are numerous operational problems with the list. Not only is 

the list prone to fraudulent additions of phone numbers from people without legal 

authority; it lacks fundamental verification allowing for abuse as well. Although it 

is easy to get on the list, enforcement agencies have made little to no provision for 

interested individuals to take their names off the list. Clear enforcement guidelines 

and standards have not been communicated to the state agencies that are required 

to participate to make the list effective. If that is not enough, because no cellular 

database exists, as well as no national disconnect database, it is virtually impossible 

to keep the list current and accurate. As the Eagles’ song says, ‘‘You can check in 

any time you like, but you can never leave.’’ For a list supposedly designed to provide citizens with choice, the ultimate choice to ’opt out’ is effectively denied to 

them. 

Enforcement of Current Law 

The ATA strongly believes that much of the current situation could have been 

avoided. The original rules were designed to address concerns arising from fraud 

and abuse. At no point has this argument been about fraud or abuse, but rather 

it has centered on convenience. We have heard from time to time that seniors are 

disproportionately targeted for fraudulent offers, or that teleservices is full of scams. 

44 

In all recorded cases, legitimate teleservices providers are not the perpetrators of 

the crimes described. In fact, we are in active support of the original intent of the 

TSR and TCPA in their efforts to eliminate fraud. We continue to provide assistance 

to state law enforcement agencies whenever possible to identify the bad actors that 

use the telephone, and bring them to justice. 

A welcome addition to the body of regulations that were originally promulgated 

dealt with company specific do-not-call lists. Current law requires that every firm 

create a list of individuals that do not want to be called by that company. If a company violated that law, suits could be filed by the individual, and collected fines 

would be returned to the conswner. This proved to be effective when used. However, 

both regulations about fraud, and regulations about the company specific rule have 

failed to receive proper education, and proper enforcement resources. Therefore, we 

believe that before new law is needed, the existing laws need to be vigorously enforced. 

What’s Next? 

Behind all of the media, the hype, the emotional rhetoric sits a real problem: How 

do we bring real relief to the U.S. consumers that are not interested in unsolicited 

calls? As an association, and a member of industry, I can assure you that we have 

wrestled with this question a great deal. Like most others that come before this 

Committee, I am going to say that we would like to work with both Congress and 

the Federal agencies involved to craft an intelligent framework for going forward. 

And like most others that come before this Committee, I expect that you would like 

me to be specific. 

Although I cannot propose today a comprehensive set of self-regulation guidelines, 

I can outline areas in which all interested parties should begin to dialog towards 

policy that makes sense. Although the emotions are running high, and there is pressure to move quickly, we owe it to all interested parties to take our time, and move 

appropriately instead of in haste. The industry is in enthusiastic favor of good policy, and doubts that such policy for a complicated issue can be developed overnight. 

We do not want to be party to falsely creating unfair consumer expectations again, 

as has occurred in the recent past through poorly developed regulatory agency policy. 

Clearly as a practical matter, we need to enforce the laws that have already been 

written, and educate consumers to make use of the company specific do-not-call 

lists. Secondly, it is only fair to seek voluntary and publicized use of the existing 

rules by bodies that are currently exempted in the regulations like charities and 

politicians. Any voluntary or legislative actions should be supported by sufficient 

economic impact studies that weigh the interests of all involved. Finally, we should 

apply intelligence to other issues like calling frequency and persistence beyond 

someone’s adamant statements of disinterest to create a healthier environment for 

the productive calling that takes place. We should all recognize that a complicated 

issue such as this requires study, consideration, and active participation as opposed 

to autocratic and capricious policy. Vilifying the hardworking people of the teleservices industry is not the right solution, but with your help we are interested in finding a better way. 

In conclusion, I recognize that as Senators you are engaged in truly important 

issues related to our men and women overseas, our economy, and our domestic security. It is gratifying to know that you are willing to adjust your schedules to listen 

to the important issues related to this segment of U.S. commerce. Thank you for 

your time, and Mr. Chairman, thank you for letting me share with you the views 

of the telemarketing industry. 

The CHAIRMAN. Thank you, sir. Mr. Guest. 

STATEMENT OF JAMES GUEST, PRESIDENT, 

CONSUMERS UNION 

Mr. GUEST. Mr. Chairman and Members of the Committee, 

thanks very much for the chance to be here today to be heard on 

behalf of the millions of consumers who are frustrated by the deluge of telemarketing calls. 

My name is Jim Guest. I am President of Consumers Union, the 

independent, non-profit publisher of Consumer Reports magazine 

and consumerreports.org, with over 5 million subscribers. We 

strongly support Consumers Union strongly supports the do-notVerDate Nov 24 2008 12:20 Sep 09, 2014 Jkt 075679 PO 00000 Frm 00048 Fmt 6633 Sfmt 6601 S:\GPO\DOCS\89661.TXT JACKIE
45 

call registry. We believe that American consumers have a right to 

stop telemarketers from intruding into their homes to hawk their 

wares. 

Consumers have a right to privacy in their home, free from the 

high-pressure sale pitches from the typical telemarketing calls. We 

actually wrote about this in Consumer Reports magazine back in 

1993. Then, as today, consumers were looking for relief from these 

incessant, annoying, unwanted phone calls, and in the last decade 

since we wrote that article, things have gotten even worse. 

Telemarketing is assault by telephone on millions of consumers 

who have the right to be free from harassment in the privacy of 

their homes. The message from Congress, Federal regulators, and 

more than 50 million consumers has been delivered loud and clear, 

and we think telemarketers ought to heed and be bound by their 

call, which is ‘‘do not call.’’ 

Consumers Union believes the FTC and the FCC have the statutory and constitutional authority to create and enforce a do-not-call 

registry, but I don’t purport to be a legal expert and I know that 

you and Congress and the courts will be trying to figure out how 

this all is going to play out. What I’m here to do is to represent 

consumers and to thank Congress, Chairman Muris, Chairman 

Powell, the FTC, and the FCC, for their vigorous defense of this 

important consumer right. 

And the last several days certainly have been a roller coaster for 

all of us who are concerned about the issue and especially for the 

millions, the over 50 million consumers who did sign up for the registry. They were expecting that starting tomorrow the dinner hour 

would be a little more peaceful than it has been in the past without 

the inconvenient and unwanted telemarketing interruptions that 

we’ve unfortunately grown to expect and that your wife had the 

pleasure of just last night, and now consumers don’t know what to 

expect. 

Telemarketers every day make over 100 million phone calls, 100 

million telemarketing intrusions every single day. We believe consumers who don’t want those intrusions, who don’t want those 

phone calls shouldn’t have to receive them. It’s a matter of consumer choice as has been discussed here earlier today. Companies 

nationwide should honor that choice. 

We’ve also talked about the experience of trying to get on the individuals companies, get on the do-not-call registry of individual 

companies, which is a piecemeal approach, as it has been described, that doesn’t work, and even with the telemarketing associations there are some similar pitfalls there. And in any event, 

these are voluntary lists which are not in any way enforceable. 

The registry, the do-not-call registry, created by the FTC and 

FCC, takes care of these shortcomings. Millions of consumers 

flocked to it, believing they were finally going to get relief and now 

we’ve got the recent court ruling in Denver which throws all of that 

into doubt, at least temporarily. So I fear, you fear, I think we all 

fear that coming tomorrow the calls will continue, it may be an avalanche, it may be a trickle, but it will surely be hugely upsetting 

to the tens of millions of vulnerable consumers who thought the 

calls would stop. 

46 

I appreciate that the Direct Marketing Association is advising its 

members to respect the wishes of consumers who have asked not 

to be called. Other trade associations have not given that same respect, in our view, to the consumer interests, suggesting that their 

members continue to call names on the list. I would hope, we would 

hope, Consumers Union would hope that telemarketers and the 

companies on whose behalf they’re paid to make the phone calls 

would in fact show restraint, and until this matter is resolved by 

the courts, and by Congress, if further action by you is needed, that 

telemarketers respect, to the extent that it’s possible to do it, the 

wishes of consumers who have made their choice known. 

I would also note that throughout the debate on the do- not-call 

registry telemarketers have said that they don’t want to call consumers who don’t want to take their calls. They say they support 

a do-not-call list but just not this version of it. That sentiment in 

fact, I would suggest, rings hollow for a consumer whose phone 

rings constantly. 

The consumer marketplace has spoken and industry should heed 

the call of ‘‘do not call’’ and we urge Congress to do we ask you, 

Mr. Chairman and your committee and Congress to do whatever it 

takes to make the do-not-call list enforceable, consistent with the 

Constitution. Thanks very much. 

[The prepared statement of Mr. Guest follows:] 

PREPARED STATEMENT OF JAMES GUEST, PRESIDENT, CONSUMERS UNION

Mr. Chairman, members of the Committee, thank you for the opportunity to be 

here with you today. My name is Jim Guest, and I am President of Consumers 

Union, the independent, non-profit publisher of Consumer Reports magazine and 

ConsumerReports.org, with over five million subscribers. 

Consumers Union strongly supports the Do-Not-Call registry. We believe that 

American consumers have a right to stop telemarketers from intruding into their 

homes to hawk their wares. We’re talking about privacy—consumers have a right 

to privacy in their own home, free from the high pressure sales pitch that accompanies the typical telemarketing call. Consumer Reports wrote about this issue as 

early as 1993. Consumers then, like consumers today, were looking for some relief 

from the constant and frequently annoying phone calls. 

While we at Consumers Union believe that the Federal Trade Commission (FTC) 

and the Federal Communications Commission (FCC) have the statutory and constitutional authority to create and enforce a Do-Not-Call registry, I’m not here to 

offer my legal opinion about what will happen next in the courts, or how Congress 

should respond to the recent court ruling. However, I am here to represent consumers and commend Congress, the FTC, the FCC, Chairman Muris and Chairman 

Powell for vigorously defending this important consumer right. 

The last several days have been a bit of a rollercoaster for all of us concerned 

about this issue, and I’m sure it has been confusing for the tens of millions of consumers who placed their phone numbers on the Do-Not-Call registry. They were expecting the dinner hour to become a little more peaceful starting tomorrow night, 

without any of the inconvenient and unwanted telemarketing interruptions that we 

have all unfortunately grown accustomed to. Now they don’t know what to expect. 

Every day, telemarketers make over 100 million phone calls. 100 million. That’s 

astounding. While some consumers welcome these calls, many others obviously do 

not. Simply put, we believe that those consumers who do not want to receive telemarketing calls shouldn’t have to. 

It’s a matter of consumer choice, and companies nationwide should honor that 

choice. 

The Do-Not-Call registry was borne out of the mounting frustration that so many 

consumers have been feeling over the years. They’d like to be able to sit down to 

an uninterrupted dinner, or spend a quiet evening with their kids, but too often that 

becomes impossible because of a ringing telephone and a persistent, hard sell sales 

pitch. Many have tried putting their numbers on the do-not-call lists that individual 

companies keep, but that piecemeal approach doesn’t stop the phone calls from comVerDate Nov 24 2008 12:20 Sep 09, 2014 Jkt 075679 PO 00000 Frm 00050 Fmt 6633 Sfmt 6621 S:\GPO\DOCS\89661.TXT JACKIE
47 

ing in the first instance, doesn’t prevent other companies from calling, and doesn’t 

always work. Lists kept by the telemarketing associations have the same pitfalls. 

And none of these voluntary lists are in any way enforceable. 

The Do-Not-Call registry that the FTC and FCC have created was supposed to 

take care of these shortcomings. And millions of consumers flocked to it, believing 

that they were finally going to be getting some relief. 

Unfortunately, the recent court ruling in Denver throws all of that into doubt, at 

least temporarily. Three courts have had something to say about the list in the last 

week, and Congress and the President have weighed in as well. So much has happened so quickly that it is understandable if consumers have become confused. 

I fear that come tomorrow, the calls will continue—it may be an avalanche, it may 

be a trickle, but it will surely be upsetting to many people who thought the calls 

would stop. I appreciate the fact that the Direct Marketing Association is advising 

its members to respect the wishes of consumers who have asked not to be called. 

Unfortunately, other trade associations haven’t been as respectful, suggesting that 

their members should continue to use the list. Some have even wondered if telemarketers will now take the opportunity to turn this into a ‘‘Do Call’’ list, targeting 

people who have signed up. 

I would hope that telemarketers, and the companies on whose behalf they are 

calling, would show some restraint. Until this is resolved by the courts—and by 

Congress if further legislative action is needed—all telemarketers should respect the 

wishes of the consumers who’ve made their choice known. 

Throughout the debate over the Do-Not-Call registry, telemarketers have said 

that they don’t want to call consumers who don’t want to take their calls. They say 

they support a do-not-call list, it’s just not this do-not-call list. 

That’s a distinction without much of a difference for the consumer whose phone 

is ringing. Whatever the ultimate outcome of the court challenges, tens of millions 

of consumers have spoken loudly and clearly. Telemarketers should heed the call 

for peace and quiet, and Congress should do whatever it takes to make this list enforceable, consistent with our Constitution. 

That sentiment rings very hollow for a consumer whose phone rings constantly. 

The consumer marketplace has spoken and the industry should heed the call of DO 

NOT CALL. 

Thank you. 

The CHAIRMAN. Thank you very much. Welcome, Mr. Hammond. 

STATEMENT OF LEE HAMMOND, MEMBER, BOARD OF 

DIRECTORS, AMERICAN ASSOCIATION OF RETIRED 

PERSONS (AARP) 

Mr. HAMMOND. Thank you, Mr. Chairman. My name is Lee Hammond and I’m a member of AARP’s Board of Directors. On behalf 

of AARP and its 35 million members, thank you for inviting us 

here this morning to discuss the importance of implementing and 

enforcing the FTC national do-not-call registry. 

AARP’s members have been among the millions of Americans 

who have taken the initiative to place their phone numbers into 

the registry in an effort to reduce the amount of unwanted telemarketing calls. We share your indignation over recent court decisions to stymie this effort and we’re here today to offer our assistance in doing what we can to make the registry and its necessary 

enforcement a reality. 

AARP’s interest in telemarketing sales rule and concerns about 

telemarketing abuses are longstanding. Seven years ago we were 

active participants in the original rulemaking proceeding. Since the 

adoption of the rule in 1995, AARP has dedicated significant resources to educating consumers about telemarketing fraud and to 

work with Federal, State, and local law enforcement agencies to 

combat it. 

We have also worked with State legislatures to enact State telemarketing legislation. Telemarketing fraud is a major concern for 

48 

AARP because of the severe effects it has on older Americans, who 

are victimized in disproportionate numbers. In 1996, we launched 

a campaign against telemarketing fraud that involved research examining older victims and their behavior, partnerships with enforcement and consumer protection agencies, and repeated delivery 

of consistent, research-based messages, that is, fraudulent telemarketers are criminals, don’t fall for the telephone line. 

AARP has repeated this warning to consumers through public 

service announcements, educational workshops, and program activities since that time. Due in large part to these concerns, AARP 

became involved in all facets of telemarketing laws and regulations, participating in workshops held by the FCC and FTC, and 

providing comments and testimony at every opportunity. Our support for a do-not-call registry has been consistent and long-standing. 

Mr. Chairman, following our active involvement in the various 

proceedings, AARP was front and center in applauding the FTC, 

following its announcement of the creation of a national do-not-call 

registry. Our executive director and CEO, William Novelli, commended the Commission for its aggressive action, saying that the 

registry, ‘‘will go a long way toward eliminating unwanted telephone calls and return the control of the telephone where it belongs, to the consumer.’’ 

Since that day we’ve devoted time and resources to ensuring that 

the registry move forward as anticipated, despite a series of road 

blocks along the way. We made certain that AARP’s members and 

the general public were properly educated and made aware of the 

list. We provided information through our website, publications, 

and State offices to inform consumers how to sign up for the list 

and to explain some of the exemptions. Additionally, we worked 

with the FCC to ensure that their amendments to the Telephone 

Consumer Protection Act mirrored the fine work of the FTC. 

Implementation of a national do-not-call registry that does not 

preempt the existing laws of some 36 states has been a benchmark 

of AARP’s advocacy efforts in this area. The recognition of the need 

for the registry by the Commission late last year was a marvelous 

holiday present for consumers over the age of 50 who have long lamented the nuisance created by unwanted telemarketing calls and 

have been frightened by the danger of telemarketing fraud. Unfortunately, it could become an early Halloween nightmare. 

Despite the wishes of some 50 million persons who have placed 

their number on the list, we’re expecting to see it go into full effect 

tomorrow and the fine work of Congress to overturn the ruling of 

one Federal judge. Another Federal judge has seen fit to bring the 

enforcement of the registry to a grinding halt. Fortunately, the 

FCC has assured the American people that they will exercise their 

enforcement authority under the law, mitigating the blow to some 

extent. 

We know that we won’t be able to completely resolve this problem in the next 24 hours. However, we do hope that when tomorrow arrives the telemarketing industry will heed the resounding 

voices of millions of consumer who have expressed their desire not 

to receive telemarketing calls and cease making them. 

49 

Mr. Chairman, AARP appreciates having the opportunity to testify here in support of the FTC’s efforts to protect consumers by implementing and enforcing the national do-not-call registry. Thank 

you for the opportunity for providing us to voice our views and we 

look forward to working with you and your colleagues to resolve 

this problem. Thank you. 

[The prepared statement of Mr. Hammond follows:] 

PREPARED STATEMENT OF LEE HAMMOND, MEMBER, BOARD OF DIRECTORS, 

AMERICAN ASSOCIATION OF RETIRED PERSONS (AARP) 

Chairman McCain: 

My name is Lee Hammond and I am a member of AARP’s Board of Directors. On 

behalf of AARP and its 35 million members, thank you for inviting us here this 

morning to discuss the importance of implementing and enforcing the Federal Trade 

Commission’s (FTC) national Do Not Call registry. AARP’s members have been 

among the millions of Americans who have taken the initiative to place their phone 

numbers into the Registry in an effort to reduce the amount of unwanted telemarketing calls. We share your indignation over recent court decisions to stymie 

this effort and we are here today to offer our assistance in doing what we can to 

make the Registry and its necessary enforcement, a reality. 

AARP’s interest in the Telemarketing Sales Rule and concerns about telemarketing abuses are long-standing. Seven years ago we were active participants 

in the original rulemaking proceeding. Since the adoption of the Rule in 1995, AARP 

has dedicated significant resources to educating consumers about telemarketing 

fraud and to working with federal, state and local law enforcement agencies to combat it. We have also worked with state legislatures to enact state telemarketing legislation. 

Telemarketing fraud is a major concern for AARP because of the severe effects 

it has on older Americans, who are victimized in disproportionate numbers. In 1996, 

we launched a campaign against telemarketing fraud that involved research examining older victims and their behavior, partnerships with enforcement and consumer 

protection agencies, and repeated delivery of a consistent research-based message. 

That is: ‘‘Fraudulent telemarketers are criminals. Don’t fall for a telephone line.’’ 

AARP has repeated this warning to consumers through public service announcements, educational workshops and program activities since that time. 

Due in large part to these concerns, AARP became involved in all facets of telemarketing laws and regulations, participating in workshops held by the FCC and 

FTC and providing comments and testimony at every opportunity. Our support for 

a Do Not Call registry has been consistent and long-standing. 

Mr. Chairman, following our active involvement in the various proceedings, AARP 

was front and center in applauding the Federal Trade Commission following its announcement of the creation of the national Do Not Call registry. Our Executive Director and CEO William Novelli commended the Commission for its aggressive action saying that the Registry ’’will go a long way toward eliminating unwanted telephone calls and return the control of the telephone where it belongs, with the consumer.’’ 

Since that day, we have devoted time and resources to ensuring not only that the 

Registry, moved forward as anticipated, despite a series of roadblocks along the 

way. We have made certain that AARP’s members and the general public were properly educated and made aware of the list. We provided information through our 

website, publications, and state offices to inform consumers how to sign up for the 

list and to explain some of the exemptions. Additionally, we worked with the Federal Communications Commission to ensure that their amendments to the Telephone Consumer Protection Act mirrored the fine work of the FTC. 

The implementation of a National Do Not Call Registry—that does not preempt 

the existing laws of some 36 states—has been a benchmark of AARP’s advocacy efforts in this area. The recognition of the need for the Registry by the Commission 

late last year was a marvelous holiday present for consumers over the age of 50, 

who have long lamented the nuisance created by unwanted telemarketing calls and 

have been frightened by the danger of telemarketing fraud. Unfortunately, it could 

become an early Halloween nightmare. 

Despite the wishes the some 50 million Americans who have already signed up 

for the list and were expecting to see it go into effect tomorrow, and the fine work 

of Congress to overturn the ruling of one Federal judge, another Federal judge has 

50 

seen fit to bring the enforcement of the Registry to a grinding halt. Fortunately, the 

FCC has assured the American people that they will exercise their enforcement authority under the law mitigating the blow to some extent. 

We know that we won’t be able to completely resolve this problem in the next 24 

hours. However, we do hope that when tomorrow arrives, the telemarketing industry will heed the resounding voices of millions of consumers who have expressed 

their desire not to receive telemarketing calls and cease making them. 

Mr. Chairman, AARP appreciates having the opportunity to testify today in support of the FTC’s efforts to protect consumers by implementing and enforcing the 

national Do Not Call registry. 

Thank you for providing us with the opportunity to voice our views and we look 

forward to working with you and your colleagues to resolve this problem. 

The CHAIRMAN. Thank you very much, Mr. Hammond, and thank 

you for all that your organization has done, and I’d like to work 

with you in helping disseminate Chairman Powell’s recommendations as you heard in the earlier hearing. You can, I think, play a 

significant role, as can you, Mr. Guest, with your millions of subscribers and online participants, which brings me to Dean Smolla’s 

proposal, which I like. 

Mr. Guest, in your opinion, if that menu were offered, what percentage of consumers would say, I don’t want to hear from any of 

them? 

Mr. GUEST. Gosh, I can’t really give you an informed opinion 

about that, but I think, you know—— 

The CHAIRMAN. After all these years of being involved in this 

issue? 

[Laughter.] 

Mr. GUEST. My crystal ball doesn’t work on this one, but I think 

there would be a substantial number who would say that they 

didn’t want any calls. I think there would be a significant number 

who would choose certain calls over others. What we would urge 

the Committee and Congress, if you do have to come back and take 

legislative action, we certainly would like a solution that’s going to 

stand constitutional muster, because consumers obviously you’re 

hearing it everywhere you’re going consumer are hugely upset. 

The CHAIRMAN. That’s why I bring it up. Dean Smolla’s proposal, 

I think, resolves any constitutional questions, don’t you think really? 

Mr. GUEST. I beg your pardon? 

The CHAIRMAN. I think Dean Smolla’s proposal really eliminates 

certainly the objections that the court raised. 

Mr. GUEST. It would sound like that would eliminate constitutional problems. Again, I don’t care to, I’m not an expert, and I’m 

not sure Chairman Muris indicated there might be some difficulties 

there that ought to be explored at least, but again, consumers want 

relief. 

The CHAIRMAN. Thank you. Mr. Hammond, how many members 

of the AARP would say, I’m tired of being called by a pollster who 

keeps me on the phone for 15 minutes while he asks me 50 questions about politicians, none of which I care much for anyway? 

Mr. HAMMOND. We share the same crystal ball, which is not 

working well at this moment, but I would suspect also that there 

would probably be a number of folks who would subscribe to a nocall list, just as there would be others who would pick and choose. 

The CHAIRMAN. Thank you, thank you both. Mr. Cerasale, I understand that DMA spent a significant amount of time yesterday 

51 

alleging the Members of Congress at the FTC as unfairly impeding 

DMA’s ability to obtain the registry list, but in your brief to the 

Denver court, you argue that the FTC would be in contempt if the 

agency disseminated the list. Will DMA be willing to go to the 

court in Colorado and ask that the FTC be allowed to maintain the 

do-not-call registry list for use by telemarketers on a voluntary 

basis? 

Mr. CERASALE. First, we’re not in the Denver court, the DMA. 

The Chairman: I know, but you are free to go to the Denver 

court. 

Mr. CERASALE. No, no, the DMA did not file that brief. We are 

not a party in the case in the Denver court. That’s the American 

Teleservices Association. We wanted to have our members voluntarily use it. We did not raise the contempt issue. 

The CHAIRMAN. Let me ask you a simple marketing question. 

You’re willing to abide by the do-not-call list, right? That’s your organization’s position, right? 

Mr. CERASALE. Yes. 

The CHAIRMAN. Voluntarily, right? 

Mr. CERASALE. That’s correct. 

The CHAIRMAN. Only Mr. Searcy’s organization is not, right, Mr. 

Searcy? 

Mr. SEARCY. Not exactly, Senator. We have strongly advocated 

that the companies who are members of our association should 

make choices on their own and that as the association it is not either our responsibility or our right to dictate business practice 

where the court has already ruled. 

The CHAIRMAN. I understand. You don’t have the same position 

as Mr. Cerasale, is that pretty accurate? 

Mr. SEARCY. We have a slight difference of opinion. 

The CHAIRMAN. Well, I think it’s pretty significant. One thing’s 

different when one commits to voluntarily abiding by a do-not-call 

list and the other position is that we ask our members to exercise 

their best judgment. I think that’s a significant difference, but 

maybe you don’t view it as a significant difference. Mr. Cerasale, 

do you view it as a significant difference? 

Mr. CERASALE. Well, it’s a difference. I think it’s best judgment 

you should follow the wishes of the American public. 

The CHAIRMAN. OK, I’m a head of a company that wants to sell 

a product, OK, by telemarketing. Why wouldn’t I just go to Mr. 

Searcy’s organization instead of yours, Mr. Cerasale? 

Mr. CERASALE. That is a problem, that is an issue that the DMA 

faces as an association, but our view is we have consistently, not 

just in telephone. 

The CHAIRMAN. Because I’d contact one of Mr. Searcy’s outfit, 

who he recommends to take their own independent judgment, their 

independent judgment we’re not going to abide by the no-call list, 

and so I’d rather do business with them because I’m not cut out 

of 50 million homes. 

Mr. CERASALE. We may lose membership over that and that’s a 

decision that we have made. 

The CHAIRMAN. I think there’s a practical implication of your 

generosity here. Mr. Searcy, is the ATA prepared to make the same 

52 

pledge? I asked you that before. You’re leaving it up to your individual members, right? 

Mr. SEARCY. We’ve never been opposed to a do-not-call program. 

We’re just opposed to the Federal Government creating an unconstitutional and one-size-fits-all program, so in no way have we ever 

advocated that people don’t use company-specific do-not-call lists or 

other regulatory opportunities created by the FCC. We just think 

that this program is both unconstitutional, poorly founded, and the 

list is inappropriately gathered. 

The CHAIRMAN. And you are perfectly entitled to that opinion, 

Mr. Searcy, and I respect that opinion. 

Mr. SEARCY. Thank you, Mr. Chairman. 

The CHAIRMAN. But I believe very strongly that that means that 

you are not going to, as an organization, comply with the do-notcall list, and that’s your right to do that. And that’s why obviously 

we are exploring other options and trying to get action taken by a 

stay in the court, so—— 

Mr. SEARCY. Well, Mr. Chairman, if I may—— 

The CHAIRMAN. Go ahead. 

Mr. SEARCY.—for just a moment. The only comment I would 

make is that neither Mr. Cerasale or myself make calls to consumers. Neither one of our associations make calls. It is our members that we advise about their legal rights and responsibilities, so 

nobody can contract with me. 

The CHAIRMAN. I understand that. Mr. Cerasale is advising his 

organization to comply with the do-not-call list. You are advising 

your organization to make their own independent judgment, isn’t 

that an accurate depiction of the situation? 

Mr. SEARCY. Well stated, sir. 

The CHAIRMAN. Thank you very much. I thank the witnesses, 

and Dean, thank you for an innovative idea. I will be hearing from 

my political friends very soon on your proposal. 

[Laughter.] 

The CHAIRMAN. But it seems to me that if we don’t get the remedy that we’ve got to explore what we want, we’ve got to explore 

other options. And it seems to me yours, at least on the face of it, 

resolves at least the concerns that the court raised. It may cause 

other concerns, but at least that reason for the court decision as 

it was. 

Senator Wyden. 

Senator WYDEN. Thank you, Mr. Chairman. Gentlemen, let me 

ask you with respect to more litigation ahead, your two associations representing, you know, the marketers, I’m concerned what 

happened in Denver is just the beginning and that we’re going to 

have a variety of challenges to the State programs and that could 

begin immediately. Can you commit both of your organizations 

today that this is not just going to set off a wave of litigation 

around the country and that you will agree today in the interim 

to commit to the Committee that you’re not going to file any actions at the State level to try to exploit what’s happened already. 

Mr. Cerasale? 

Mr. CERASALE. I’ll go first. The DMA, Senator Wyden, the DMA’s 

position is that if there’s going to be a national registry that there 

be a national registry, that it preempt the State laws, at least as 

53 

far as interstate calls are concerned, so that national marketers 

just have to deal with one list. So under that, we would like to 

have the constitutional issues on a do-not-call list settled, and 

we’re not going to at this point it’s not in our plan, we’ve had no 

discussions of taking any action against any State do-not-call list. 

We are looking at and waiting for to see what is the issue, how the 

constitutional issue is settled on a national do-not-call list. 

Senator WYDEN. So you’ll tell the Committee that you have no 

plans to go forward to with any State challenges? 

Mr. CERASALE. That is correct at this time. 

Senator WYDEN. Mr. Searcy, will you make the same commitment? 

Mr. SEARCY. Litigation right now is extremely fluid, Senator and 

the only comment I would make is that we have not contemplated 

beyond challenging the Federal do-not-call list at this point, but I 

would comment that the State laws, certainly there are implications from what happens in the Federal constitutionality issues 

that will and can be applied to the states ultimately. But at this 

time, as of today as per your request, we are not contemplating any 

State litigation. 

Senator WYDEN. Mr. Searcy, did you something like 72 hours ago 

advise your members to continue calling numbers on the do-not-call 

list? 

Mr. SEARCY. No, Senator, we did not. 

Senator WYDEN. The Washington Post is wrong? 

Mr. SEARCY. Papers can make mistakes. 

Senator WYDEN. Well, were they mistaken in that? I’m looking 

at a story from Monday, September 29, and it quotes you, well, it 

states Mr. Searcy advised his members to continue calling the 

numbers on the do-not-call list. You did not do that? 

Mr. SEARCY. No, we, as I said before, informed our members that 

they would have the choice themselves to make the decision as to 

whether they should go ahead and make calls or not, that the 

courts had given them the relief that we had sought. And Senators, 

you might imagine it would be counterintuitive for us to apply and 

build a lawsuit around constitutionality only to reject it at the moment in which we start the victorious path. 

Senator WYDEN. I just was struck by what seemed to be a change 

in your position between Friday and today, but you’re saying there 

has been no change in your position? 

Mr. SEARCY. No, there hasn’t, and in other substantial press organs that statement has been consistent throughout, from the 29th 

and beyond. 

Senator WYDEN. Mr. Searcy, when I talk to people at home about 

this, they see this as very straightforward stuff. I mean, at a time 

when you are calling for dialogues and studies and the like, they 

want action and what they want is based essentially on a very simple proposition. They want to be able to say no. Do you believe that 

people ought to have that right? 

Mr. SEARCY. Senator, I absolutely believe that people should 

have a right to control their phone and that there are legitimate 

means that are already protected through the FCC’s own laws that 

allow them to do so, items that have already been put into the 

record by Chairman Powell that give the necessary relief. I do not 

54 

believe that the Federal Government has a right to dictate the type 

of speech that should be done, nor to restrict in such a way as to 

create an unemployment loss of 2 million jobs. 

Senator WYDEN. Why do you think the public’s going to be satisfied with the voluntary system that you’re advocating, Mr. Searcy? 

Clearly, problems do not come to the desks of Senators and I have 

been stunned at a time when there’s so much concern about terrorism how concerned people are about this issue, that the current 

system doesn’t work. Now you have advocated basically a continuation of the current system, more dialogues, more studies, more 

voluntary programs. What basis do you have for demonstrating to 

the Congress that something like that will work? 

Mr. SEARCY. Senator, I would be very excited if we could enter 

into dialogue. We have been trying to do that for 3 years. The FCC 

and FTC have shown no interest in reviewing the comments that 

were provided or providing a means by which we can discuss intelligently with policymakers, other trade associations, and interested 

parties, how we make a policy or plan that works for everyone. So 

this would not be a continuation of business as usual, but rather 

we have been at the table asking for help and support. It would 

be exciting if Congress would ask others to join us. 

Senator WYDEN. Well, I will tell you, having been party to some 

of these discussions, that the Congress and the agencies have in 

my view involved the private sector in an unprecedented kind of 

fashion, to some extent I’ve tried to specialize in these issues, been 

supportive of a number of the positions your organization and Mr. 

Cerasale’s has taken in the past. The problem here is that you all 

really don’t agree when it comes down to it to making it possible 

for the public in a straightforward fashion to say no, and I think 

that is essentially what is at issue here. 

And I think the last question I have—I’m not clear who is involved in these various processes to say that the Federal Trade 

Commission would be in contempt if they’re involved in voluntary 

compliance kinds of efforts. Mr. Cerasale, to your credit, you said 

you’re not going to be a party to it in the future and you’re not a 

party to it now. Mr. Searcy, what about your organization? I mean, 

this goes right to the heart of what it is you’ve said you wanted, 

which is voluntary programs, the Government and the private sector working together, and yet it seems when the Federal Trade 

Commission tries to work with the industry to meet them half-way 

on a voluntary program, all we hear are shouts of contempt and 

the like, so will you. 

Mr. SEARCY. But it’s hardly a voluntary program when you have 

to spend $7,375 to be in compliance. That’s a purchased program 

and all of our members who have purchased the list, as well as Mr. 

Cerasale’s members, have had to make that expenditure, which is, 

I might also add, in the court case an unlawful tax upon their business. 

But as a separate note, it is not our decision to decide whether 

or not someone is in contempt of court. The court makes that decision on their own. However, the court has been very clear that if 

directly or indirectly the FTC should choose to try to bypass the 

court’s ruling, the court will have serious consequences that they 

55 

will go ahead and dole out to those institutions. In essence, we 

don’t have to do anything but let the court do its job. 

Senator WYDEN. Well, I’m sympathetic to the question of costs of 

voluntary kinds of programs and that’s why I’ve talked today about 

the Government meeting you all half-way, but it’s pretty hard to 

do that when the first thing you do is punch them with a contempt 

allegation. That doesn’t breed a lot of good faith when you’re trying 

to bring the parties together, and I would only just say to this 

panel and my friends at AARP and the Consumers Union, we’ve 

worked with you all often in the past and appreciate your leadership here. 

And Professor Dean I hadn’t followed your scholarship in this 

area but I think Chairman McCain speaks for a lot of us—it’s an 

attractive idea. But the ball is really in the court of the two associations here, and I would just urge you to understand the kind of 

damage that is being done to your organizations and to your members by what I think is very significant stonewalling on this issue. 

And Mr. Searcy, when you say, for example, we don’t make calls, 

so you’re kind of an innocent bystander in all of this, while you call 

for dialogues and studies and things of this nature, the fact of the 

matter is that organizations provide counsel to your members, 

that’s what you all do. And it’s pretty clear to me if you didn’t tell 

them explicitly, crank up the calls again, you basically said, look, 

you don’t have to be reluctant right now, and I think that’s unfortunate. I don’t think that’s the kind of good faith that the public 

wants to see from businesses, particularly at a time when I and 

others would like to meet you half-way. 

So I hope that your two associations in the days ahead will do 

everything you can to resolve this expeditiously. I’ll say as a Member of the Senate I continue to be anxious to meet you half-way. 

When you have good ideas we’ll be very eager to have them, but 

the days of dialogues and studies and more of what I think the 

public sees as stonewalling here have got to end. People want action. They want action around the proposition that they’ve got a 

right to say no, and I started this off I think two-and-a-half hours 

ago saying 50 million people are on a legal roller coaster. Your two 

organizations can do a lot to bring that ride to an end and I would 

urge you in the strongest kind of fashion to work with us, to work 

with Senators on a bipartisan basis to do it. 

Do any of you have anything further that you’d like to add? With 

that, the Committee is adjourned. 

[Whereupon, at 12:07 p.m., the hearing was adjourned.] 

(57) 

A P P E N D I X 

PREPARED STATEMENT OF HON. OLYMPIA J. SNOWE, U.S. SENATOR FROM MAINE

Mr. Chairman, thank you for calling this timely hearing today. As you know, late 

last week, the United States District Court for the Western District of Oklahoma 

declared the Federal Trade Commission’s national ‘‘Do-Not-Call’’ Registry invalid 

after concluding that the Commission lacked the authority to implement the rule. 

The next day, Congress set the record straight by passing, H.R. 3161, which empowers the Federal Trade Commission to create, implement and enforce the national 

‘‘Do-Not-Call’’ Registry. Later the same day in Denver, U.S. District Judge Edward 

Nottingham, blocked implementation of the registry, ruling that it violated a telemarketer’s constitutional right to free speech. Where do we go from here? 

The ‘‘Do-Not-Call’’ Registry provides a very important service—it provides people 

an opportunity to stop those annoying telephone solicitations from marketers. I believe that citizens should have the right not to be disturbed by unsolicited phone 

calls in their own homes and the ‘‘Do-Not-Call’’ registry empowers citizens to stop 

these calls. 

Support for the registry is unprecedented. To date, after only four months, the 

registry contains over 50 million phone numbers. In Maine alone, over 241,000 

phone numbers have been registered and this number is growing everyday. Ultimately, the Federal Trade Commission expects sixty percent of the Nation’s households to sign onto the registry potentially blocking eighty percent of telemarketing 

calls. 

Specifically, the Federal registry will supplement State ‘‘Do-Not-Call’’ lists. It 

works by requiring telemarketers to search the registry every three months and 

synchronize their call lists with the phone numbers on the registry. If you don’t 

want to be disturbed by marketing calls, you simply register online with the FTC 

or call a toll free number and request that your telephone number be added to the 

registry. More importantly, this law has enforcement power-a telemarketer who disregards the national ‘‘Do-Not-Call’’ Registry could potentially be fined up to $11,000 

for each call. 

Mr. Chairman, I commend the Federal Trade Commission, the Federal Communications Commission, and Congress for their work in the creation and implementation of the ‘‘Do-Not-Call’’ registry. Again, I thank you for holding this most timely 

hearing and I look forward to hearing from our witnesses about ways we can ensure 

that the Federal registry is implemented and enforced so that the hopes and expectations of the fifty million people already registered are upheld. 

Thank you, Mr. Chairman. 

Æ