"Do not call" controversy likely to turn into agency turf battle

For a higher-quality .wav version of this interview, click here. The future of the national "do not call" list is likely to turn into a debate over which federal agency should be responsible for enforcing it, according to Christopher Yoo, associate professor of law at Vanderbilt University. "Up to this point, the controversy over the do not call list has focused on whether it violated the First Amendment," Yoo says. "But given the decision this week by the U.S. Court of Appeals for the 10th Circuit, the next phase of the controversy will be a classic turf battle over whether the do not call list will be enforced by the Federal Trade Commission or the Federal Communications Commission." Yoo urges that the do not call list should be enforced by the FCC. "The FCC has a great deal of expertise in regulating the telephone industry and has an extensive enforcement apparatus. They also come into contact with the industry at many points, which expands the number of ways that the problems caused by telemarketing can be solved. In contrast, the FTC’s traditional area of responsibility is preventing fraudulent or deceptive practices. Although the FTC’s desire to expand its authority is understandable, it does not have the experience or enforcement personnel as the FCC." Another possibility is enforcement by individual states. "The state public utility commissions lack the enforcement staff to police this problem effectively. Telemarketing also represents an interstate problem that tends to go beyond the ability of any particular state to solve," according to Yoo. As to whether the issue of the list’s constitutionality has been settled, Yoo says, "The most recent judicial decision has made it much more likely that the list will be considered constitutional. The aim of the First Amendment is to enable willing speakers to communicate with willing listeners and to make sure that private individuals—not the government—make the final decision as to the speech they can receive. The do not call registry is consistent with that. Arguments to the contrary clothe themselves in libertarian rhetoric, but aren’t really faithful to the classic question of where does my liberty end and yours begin." Editor’s note: Yoo is one of the nation’s leading authorities on law and technology. He looks at how technological innovation and cutting-edge theories of economics are transforming telecommunications and electronic media regulation. Broadcast Media Note: Vanderbilt has a campus broadcast facility with a dedicated fiber optic line for live TV interviews and a radio ISDN line. Media contact:Susanne Loftis, (615) 322-NEWS susanne.loftis@vanderbilt.edu

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