| Caprice and Whim |
29 September 2003
|
Judicial Abuse Halts Don't Call Registry
Not content to let the 9th Circuit monopolize the laughter of judicial critics, US District Judges Lee R. West in Oklahoma City and US District Judge Edward W. Nottingham in Denver decided to call a halt to the "Do Not Call" list that the Federal Trade Commission was about to implement and that would prevent telemarketers from interrupting the dinner of 50 million Americans who signed up. Judge Lee let the Direct Marketing Association off the hook saying that the FTC didn't have the authority from Congress to act. Judge Nottingham decided the registry was a violation of free speech. Both judges are plain wrong.
His Honor Judge Lee, in siding with the people who stand to make a lot of money because of his decision, said that the agency can only prohibit abusive or deceptive telemarketing activities. He also pointed out the Federal Communications Commission did have the authority. The FCC just changed its rules to mesh with the FTC's don't-call registry.
Where Judge Lee went completely off the rails is in his assertion that the $18 million that Congress gave to the FTC to implement the don't-call registration did not give the agency specific authority to do so. Never in the history of the American nation has the legislature authorized an expenditure without meaning for the money to be spent. More often, good ideas are enshrined in law, and then, the executive is denied the cash to make them happen. Getting the money is the hard part.
Meanwhile, Judge Nottingham backed the business on the grounds that different types of speech we being treated differently because charities are exempt from the registry's rules while businesses are not. His Honor should review his First Amendment law -- business speech has been circumscribed heavily by the courts for decades.
Congress is working to fix the problem, and the FTC has appealed both decisions. Still, it's more wasted time and effort brought to the American people by an unaccountable judiciary.
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