WASHINGTON – Saying the people have spoken, President Bush signed into law Monday a bill that empowers the Federal Trade Commission (search) to enforce a do-not-call list that telemarketers must consult before picking up the phone and calling people at home.
Whether the law actually goes into effect, however, is another story. A federal judge ruled last week that enforcement of the FTC's list is unconstitutional.
"The do-not-call registry (search) is still being challenged in court. Yet, the conclusion of the American people and the legislative branch and the executive branch is beyond question. So, today I am pleased to sign this important piece of legislation into law," Bush said at a White House signing ceremony.
Federal Communications Commission (search) Chairman Michael Powell said Monday his agency will enforce the penalties even if the FTC can't.
Early last week, U.S. District Judge Lee R. West (search) ruled in Oklahoma City that the FTC lacked authority to run the registry. In a stunning display of what Congress can do when it sets its mind to it, both chambers introduced and passed legislation on Thursday that clarified the agency's role, giving it authority to enforce the list, which now has 50 million phone numbers on it.
But just as soon as the bill was done, U.S. District Judge Edward W. Nottingham ruled that the do-not-call list is unconstitutional because the limitations on free speech apply only to businesses and not to charities or political groups.
Because of the unequal application, the FTC would not be allowed to enforce the rules, the federal court ruled. Free speech experts add that commercial speech is protected speech and cannot be prevented.
But the FCC has "separate and parallel" do-not-call regulations that it created last summer as a mirror to the FTC's rules. A federal appeals court in Denver did not block the FCC's rules, and Powell said they are operational under different guidelines.
"The higher court, which sits over the one that found the FTC rules unconstitutional, refused to block our rules on that basis, citing the public interest of consumers allowing them to go forward," Powell said Monday.
"Our rules have in no way been stopped or slowed by the consequence of the court action and that is why we're committed to going forward with them," Powell added.
Telemarketers on Monday were denied a hearing by the Supreme Court, in which it asked the high court to throw out the decision by the three-judge panel in Denver. Though unlikely they would succeed, the telemarketers could seek a hearing by another Supreme Court justice.
"We're not opposed to a do-not-call program. We're not opposed to voluntary [restrictions]. We're opposed to the federal government deciding that politicians can still call you, that charities can still call you. They are violating the U.S. Constitution and the First Amendment (search)," said Tim Searcy, director of the American Teleservices Association (search).
FTC Chairman Timothy J. Muris said that he thinks the courts will be overturned in saying that commercial and charitable calls are on a par.
"The court said we have to treat charities like commercial speech, and the Supreme Court has repeatedly said that charitable solicitations has more first amendment protection," he said.
But some problems still remain with enforcing the list. On Sunday, the FTC had shut down the service that gives telemarketers the list of numbers not to call, so not every telemarketer has it.
The numbers given on the FTC's Web site and phone number also may not be transferable, according to the chairman of the FTC.
"They have all the authority they need. The problem is, to really enforce it efficiently, they need access to our list and our complaint system and right now it doesn't look like we can give them that," Muris said.
Powell said his agency would begin using the FTC's list on Wednesday, the day the do-not-call list was set to go into effect.
"The FCC will enforce its do-not-call rules against telemarketers that have obtained the do-not-call list from the FTC, beginning Wednesday," Powell said.
The FTC is still taking numbers from people as well as complaints about telemarketer violations at www.donotcall.gov or by calling 1-888-382-1222. FCC officials said complaints will be forwarded to their agency for enforcement. Consumers can also file complaints directly with the FCC by calling 1-888-225-5322.
Many telemarketers have agreed to lay off for a bit while the legal wrangling sorts itself out. The Direct Marketing Association (search), which represents more than 70 percent of the telemarketing industry, said nearly all of its 200 largest members have pledged to not call for the meantime.
"The industry seems to understand what we've said for almost 20 years: People don't want to get called, they shouldn't get called," association spokesman Louis Mastria said Monday.
While the FTC could impose $11,000 per violation against telemarketers, the FCC could telemarketers as much as $120,000 depending on their industry, FCC spokesman David Fiske said.
Fox News' Brian Wilson and The Associated Press contributed to this report.