Category Archives: Administrative Law

Turn your back for a minute, and everything changes. While I was teaching a class and eating dinner news broke that a second district court has struck down the do-not-call list, this time on First Amendment grounds.

Having quickly read this new decision by U.S. District Judge Edward Nottingham of the Colorado District Court in Denver striking down the do-not-call list, Mainstream Marketing Services v. FTC, I think that there are grounds to believe that, despite being decided on First Amendment grounds, this decision either will not affect the new congressionally mandated plan and/or will be reversed on appeal. I teach a lot of varied things, but First Amendment law is not one of them. So I'm offering these tentative thoughts as a sort of rough draft. If on reflection I change my mind, I may rewrite parts of this, and indicate where I made changes.

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Just a day after a district court judge ruled that the FTC exceeded its authority when it set up a national do-not-call list both houses of Congress have voted to give the FTC authority to establish the do-not-call registry. This is how the system is supposed to work, but so rarely does.

I've read the judge's decision in US Security v. FTC, and I think it was defensible. There are two key moves in the case, both arguable, but neither obviously wrong.

The first key move is to say that because regulatory authority was shared between two agencies, the FTC isn't entitled to the Chevron deference an agency usually gets when interpreting a statute, and that when viewed in this cold light the FTC's authority to ban “deceptive…and other abusive telemarketing acts or practices” wasn't intended by Congress (in 1994) to mean banning telemarketing outright, especially as the do-not-call list is run by the FCC not the FTC.

The second move, more dubious in principle, but perhaps compelled by Supreme Court precedent, was that Congress's authorization—in the Consolidated Appropriations Resolution passed last March—of expenditures by the FTC “to implement the do-not-call provisions of the Telemarketing Sales Rule” was insufficient evidence of Congressional ratification of the FTC's plan. The district court relied on Ex parte Endo, a 1944 Supreme Court decision which (in the process of ruling that US citizens of Japanese origin held in detention camps must be released forthwith) held that if Congress is to be found to have ratified by appropriation any part of the program of an executive agency, the bill doing so must include a specific item referring to that portion of the program. And that, the judge in US Security v. FTC held reasonably, if perhaps debatably, was not the case.

Endo, incidentally, was recently discussed in a brilliant article by my colleague Patrick Gudridge called Remember Endo?, 116 Harv. L. Rev. 1933 (2003). The article is currently online, alas, only at Lexis and Westlaw .

In any event, if Congressional intent wasn't clear last week, it is clear today. The House voted 412-8 to give the FTC the authority, and the Senate vote was 95-0. Works for me.

Update: Hours after I wrote this, along comes a second district court decision striking down the do-not-call list on First Amendment grounds. I have some preliminary thoughts about that one.