TENTH CIRCUIT UPHOLDS FCC-FTC "DO NOT CALL" LIST.A three judge panel of the Tenth U.S. Circuit Court of Appeals has unanimously upheld the "Do Not Call" list as constitutional and found the Federal Communications Commission's established business relationship exception to the list is not arbitrary or capricious capricious adv., adj. unpredictable and subject to whim, often used to refer to judges and judicial decisions which do not follow the law, logic or proper trial procedure. A semi-polite way of saying a judge is inconsistent or erratic. .
Although the Feb. 17 ruling addresses telephone calls rather than facsimile messages, it is expected to guide the FCC (1) (Federal Communications Commission, Washington, DC, www.fcc.gov) The U.S. government agency that regulates interstate and international communications including wire, cable, radio, TV and satellite. The FCC was created under the U.S. as it reconsiders its "Do Not Fax" rule.
The FCC published a "Do Not Fax" rule in the Federal Register on July 25, but there was such an outcry from insurers and others about how onerous on·er·ous
1. Troublesome or oppressive; burdensome. See Synonyms at burdensome.
2. Law Entailing obligations that exceed advantages. , costly and anti-competitive the rule was that the commission agreed Aug. 18 to stay implementation.
The rule would make it unlawful for anyone to send a fax that could be considered an unsolicited un·so·lic·it·ed
Not looked for or requested; unsought: an unsolicited manuscript; unsolicited opinions.
Adjective advertisement to a facsimile machine without the prior written permission of the recipient.
Although the Feb. 17 ruling is not expected to have a direct impact on the reconsideration re·con·sid·er
v. re·con·sid·ered, re·con·sid·er·ing, re·con·sid·ers
1. To consider again, especially with intent to alter or modify a previous decision.
2. of that rule, FCC attorneys said they thought the language on the commission's approach to avoiding an arbitrary and capricious rule would be used as a guide for how to implement a rule that did not violate the Administrative Procedure Act Administrative Procedure Act n. the Federal Act which established the rules and regulations for applications, claims, hearings and appeals involving governmental agencies. .
FCC Chairman Michael K. Powell called the ruling "a triumph for American consumers."
"The National Do-Not-Call Registry is one of the most popular and successful consumer initiatives undertaken by the federal government and, along with the vast majority of our citizens, I commend com·mend
tr.v. com·mend·ed, com·mend·ing, com·mends
1. To represent as worthy, qualified, or desirable; recommend.
2. To express approval of; praise. See Synonyms at praise.
3. the court for removing the shadow of judicial uncertainty," he said.
The court consolidated four cases involving challenges to the FCC's and Federal Trade Commission's registry which allows individuals to register their phone numbers on a national list and prohibits most commercial telemarketers from calling those numbers.
Each of the cases challenged the list on grounds the First Amendment prevents the government from establishing an opt-in telemarketing telemarketing, the practice of selling goods or services to customers by means of the telephone or of surveying consumer preferences in telephone conversations. regulation that provides a mechanism for consumers to restrict commercial sales calls but does not provide a similar mechanism to limit charitable or political calls.
The court found the list was constitutional because it restricts "only core commercial speech" and "targets speech that invades the privacy of the home, a personal sanctuary that enjoys a unique status in our constitutional jurisprudence jurisprudence (jr'ĭsprd`əns), study of the nature and the origin and development of law. ."
In addition, the court found the list is "an opt-in program that puts the choice of whether or not to restrict commercial calls entirely in the hands of consumers" and does not materially further "the government's interests in combating the danger of abusive Tending to deceive; practicing abuse; prone to ill-treat by coarse, insulting words or harmful acts. Using ill treatment; injurious, improper, hurtful, offensive, reproachful. telemarketing and preventing the invasion of consumer privacy, blocking a significant number of the calls that cause these problems."
The court also considered whether it was arbitrary and capricious for the FCC to approve the "established business relationship" exception for commercial callers.
The plaintiffs had argued the FCC had not given appropriate consideration to the anti-competitive effect the exception could have on telecommunications markets.
The court found the FCC had sufficiently addressed the plaintiffs' concerns by asking for comments on the anti-competitive effect the exception might have and had "considered several proposed ways in which an anti-competitive effect could be mitigated, rejecting each of them."
The court concluded it was not empowered to substitute its judgment for that of the FCC under the arbitrary and capricious standard of review.