The recent decisions by Oklahoma and Colorado federal courts invalidating the Federal Trade Commission’s “Do Not Call List” were major victories for telemarketing companies, “but a tragedy for the rest of us,” says Neil M. Richards, associate professor of law at Washington University in St. Louis.
Richards thinks that the List’s prospects on appeal are not as strong as they could or should be.
“The Tenth Circuit has not been particularly receptive to consumer privacy claims against Telemarketers in the past,” says Richards. “I’m hopeful, though, that either the Tenth Circuit will see the error of its ways in past cases, that it will see that this case is different from its prior case law, or that the Supreme Court will ultimately step in and resolve this issue. I’m particularly hopeful that the FTC’s lawyers will be able to convince the Tenth Circuit that Judge Nottingham’s decision is wrong on the law, as this result would end the case (and restore the Do-Not-Call list as soon as possible), without the Supreme Court having to get involved.”
Despite the telemarketers’ victories, some direct marketers have agreed to abide by the List.
“I think that the quick action by Congress and the President, coupled with the immense news coverage that this issue has received has made them very nervous,” notes Richards. “The telemarketers are facing enormous public and political pressure, and are having to be very careful. I think it shows the enormous frustration that all Americans with phones — and this includes members of Congress — have with the unreasonable intrusions that telemarketing can make into their privacy.”