A second federal judge in the US on Thursday blocked the "do not call" list on free-speech grounds, less than one hour after Congress overrode another legal decision by a federal judge in Oklahoma City, Oklahoma, earlier this week that would have derailed the popular anti-telemarketing program.
The Denver, Colorado, court's decision threw up another barrier for a Federal Trade Commission (FTC) effort that would have declared 50 million telephone numbers off limits for telemarketers starting next week.
US District Judge Edward Nottingham in Denver said the program violated constitutional free-speech protections because it amounted to "a government restriction on lawful and truthful 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 ... to justify its discrimination," he said in a 33-page decision.
Nottingham also lambasted the program because it would block commercial calls but not charitable calls, an approach FTC officials have said in the past was designed to give a wide berth to free-speech concerns.
Nottingham's decision came two days after another federal judge in Oklahoma City said the FTC did not have authority to implement the program, which would fine telemarketers up to US$11,000 for each call they made to numbers on the list.
Lawmakers promptly wrote a law giving the FTC that authority, and passed it by wide margins on Thursday afternoon in a rare display of bipartisan harmony.
"This Congress has often been called a slow and cumbersome beast, but I think you can see how fast this Congress is prepared to move when 50 million Americans are angry," said bill sponsor Representative Billy Tauzin, a Louisiana Republican.
Lawmakers said the courts were defying the wishes of most Americans.
"It's one of the most absurd rulings I've ever heard of," North Dakota Democratic Senator Byron Dorgan told reporters.
"It's not an infringement on telemarketers' speech if I don't want to take their calls," said Dorgan, a sponsor of the measure passed earlier on Thursday.
"The will of the Congress is very clear," said Amy Call, a spokeswoman for Senate Majority Leader Bill Frist.
"This is obviously a decision we care about," he said.
US President George W. Bush issued a statement supporting Congress' action, but White House officials had no immediate comment on the latest twist.
Congress could possibly fix the problem again by extending the do-not-call list to cover other types of solicitations, said attorney Deborah Thoren-Paden, who advises businesses on how to comply with telemarketing regulations.
"It clearly looks as though the judges would have upheld the do-not-call list if it applied equally to charitable" calls, said Thoren-Paden, a partner at Pillsbury Winthrop in Los Angeles.
The latest decision was sure to unleash more vitriol on the judicial branch.
US District Judge Lee West's chambers in Oklahoma City were inundated on Thursday with a flood of calls from irate consumers in the wake of his decision earlier this week, a court clerk told reporters.
The Direct Marketing Association urged its members to avoid calling numbers on the FTC's list.
Consumer wishes to be left alone could be better handled by the DMA's industry-run list, spokesman Louis Mastria said.
"We didn't think the federal government needed to be involved in this decision, we thought it could be handled by the private sector," he said.
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