[Congressional Record (Bound Edition), Volume 149 (2003), Part 17]
[Senate]
[Pages 24205-24206]
[From the U.S. Government Publishing Office, www.gpo.gov]




 SENATE RESOLUTION 242--TO EXPRESS THE SENSE OF THE SENATE CONCERNING 
                        THE DO-NOT-CALL REGISTRY

  Ms. MURKOWSKI submitted the following resolution; which was referred 
to the Committee on the Judiciary:

                              S. Res. 242

       Whereas on September 25, 2003, the United States District 
     Court for the District of Colorado decided the case of 
     Mainstream Marketing Services, Inc. v. Federal Trade 
     Commission, 2003 U.S. Dist. LEXIS 16807;
       Whereas the case considered the constitutionality of the 
     amended telemarketing sales rules promulgated by the Federal 
     Trade Commission, which established a do-not-call registry;
       Whereas the district judge held that the do-not-call 
     registry violated the First Amendment free speech rights of 
     telemarketers and was therefore unconstitutional;
       Whereas on September 25, 2003, Congress passed legislation 
     reaffirming the authority of the Federal Trade Commission to 
     establish the do-not-call registry;
       Whereas over 50,000,000 telephone consumers have signed up 
     for the do-not-call registry, which was to go into effect on 
     October 1, 2003; and
       Whereas the people of the United States have the right to 
     protect the privacy of their homes from unsolicited 
     commercial telemarketing calls: Now, therefore, be it
       Resolved, That the Senate--
       (1) strongly disapproves of the decision of the United 
     States District Court in Mainstream Marketing Services, Inc. 
     v. Federal Trade Commission; and
       (2) directs the Senate Legal Counsel--
       (A) to intervene in any case brought to defend the 
     constitutionality of the do-not-call registry; or
       (B) if unable to intervene, to file an amicus curiae brief 
     in support of the constitutionality of the do-not-call 
     registry.

  Ms. MURKOWSKI. Mr. President, I come to the floor today to address 
yet another misguided judicial action that is threatening again to 
prevent the ``Do-Not-Call Registry'' from going into effect on 
Wednesday, October 1. This body just last week addressed the misguided 
application of the law from a Federal Court in Oklahoma.
  Not 48 hours had passed before the lawyers for the telemarketers 
found another judge to halt the implementation of that program--this 
time on constitutional grounds.
  The U.S. District Court for the District of Colorado in Mainstream 
Marketing Services, Inc., et. al. v. Federal Trade Commission, last 
Friday held that the FTC ``Do-Not-Call Registry violated the Right of 
Free Speech provisions of the United States Constitution.
  How many times must this body speak before the courts will listen?

[[Page 24206]]

  Americans are outraged that their right to privacy can be invaded 
every night while they try to eat dinner with their families. Our lives 
are busy enough throughout the day with work and school, after school 
activities and preparing for the next day. To have a little quiet time 
at dinner is not too much to ask, yet these telemarketing companies now 
feel it is their right to disturb our few moments of family solitude.
  In the first case they brought against the regulations they argued 
lack of authority. Now they argue lack of constitutional support. What 
is next, lack of ability to abide by what the Administration, Congress 
and the American people are clamoring for?
  Those who seek to stop the implementation of this program assert they 
are protected by a right of free speech. Therein lies the problem.
  The commercial speech that the telemarketers seek to preserve is not 
held to the same standard under the First Amendment as individual right 
of speech. Further, the FTC regulations are not arbitrary and 
capricious because the FTC considered the comments of thousands of 
people and clearly made findings justifying their regulations.
  Now, Congress has subsequently acted to establish in law the 
authority for the FTC to say that telemarketers do not enjoy a free 
rein into our homes by using the telephone.
  I say it is the people who have the right to decide they do not want 
to be hounded by telemarketers and those who would interrupt the 
sanctity of their homes.
  The U.S. Supreme Court has found that one aspect of residential 
privacy is the right to avoid unwanted communications. The Supreme 
Court also has repeatedly held that individuals are not required to 
welcome unwanted speech into their homes and that the government may 
protect this freedom.
  The entire purpose of the FTC's ``Do No Call Registry'' program is to 
allow Americans to opt-out of receiving these annoying phone calls. In 
my judgment the court's decision to stop this program tilts our privacy 
rights out of balance in favor of these telemarketing companies.
  As we heard repeatedly on the Senate floor last week, in just the few 
short months since the FTC adopted these rules nearly 50 million people 
have registered to stop these harassing phone calls.
  Alaskans were looking forward to the implementation of this FTC rule 
to give them the peace and quiet they have sought for so long. We need 
this FTC rule to protect our citizens and their privacy.
  Americans and Congress have spoken. People do not like to be 
disturbed by unwanted and harassing phone calls from people selling 
products over the phone. The Administration listened to the cries of 
Americans. Congress listened to the cries of Americans. Now the courts 
must respect the choice of the people by allowing this rule to go into 
effect.
  Unfortunately, the most recent court opinion on this issue shows yet 
again that the justice system in America is broken and badly in need of 
repair.
  The resolution that I submit today is different from what the Senate 
voted on last week. This resolution states that it is the sense of the 
United States Senate that the court's judgment in this most recent case 
was in error.
  The Resolution further authorizes the Senate Legal Counsel to 
intervene in this most recent case to assert the constitutionality of 
the ``Do-Not-Call Registry,'' or if it is unable to intervene, to file 
an amicus curiae brief in support of the constitutionality of the do-
not-call registry.
  Once again I ask this body: How many times must we speak before the 
courts will let this rule go into effect? Hopefully the courts will pay 
attention today.
  I am proud to submit this resolution and I hope this body will act 
quickly on this measure to send yet another message to our courts that 
the privacy of our homes cannot be invaded.

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