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When the anticipated Oct. 1 launch of the Federal Trade Commission’s Do-Not-Call list for telemarketers was buried in conflicting court rulings, a sister agency located directly across the Washington Mall — the Federal Communications Commission — announced that it would take over instead. What looked like a last-minute rescue, however, was anything but. The FTC and FCC had developed a matching set of regulations for the list all along, thanks to agency forethought — and long-standing relationships that cross bureaucratic lines. Career government lawyers inevitably make contacts in other agencies, and in the case of Do-Not-Call, some of those contacts proved vital to navigating the flurry of legal rulings and congressional acts. Lawrence Demille-Wagman, one of the lead litigators for the FTC, had worked with lawyers now with the FCC on several high-profile cases, including the recent Nike v. Kasky, which also dealt with questions of freedom of commercial speech. John Daly, deputy general counsel for litigation and Wagman’s supervisor at the FTC, began his government career at the U.S. Department of Justice, where he worked with Jacob Lewis, now an FCC litigator active in the Do-Not-Call fight. The list’s official origins lie in Congress’ 2002 Do-Not-Call Act, which allowed the FTC to charge telemarketers fees to pay for the registry. The idea existed even before that; both the FCC and FTC had contemplated such a list, but only recently had technology made it both necessary and workable. “Ten years ago, there were about 18 million calls per day to homes [from telemarketers],” says Dane Snowden, chief of the consumer and governmental affairs bureau at the FCC. “Fast-forward to 2003, and there’s 104 million calls per day.” What also changed during that time was the Internet and its ability to make the administration of such a list economically feasible for both government agencies and for telemarketers. FTC staff attorneys had foreseen such a registry as a natural outgrowth of an increasing focus on consumer privacy, says Wagman. Once Congress acted, FTC lawyers dedicated themselves full-time to drafting the needed regulations, a process that involved many rounds of requests for information, public workshops, feasibility studiesand contract proposals. The FCC, given its role in the communications industry, was on a similar track, prodded by long-range planning that started when Michael Powell took over the agency in January 2001, says Snowden. Last March Congress told the two agencies to try to make their rules consistent. They did more than that. When the list came under attack in several courts starting in January, litigators at both agencies were ready to defend. The FTC’s jurisdiction was attacked, as was the constitutionality of the list itself. The suits, brought by groups such as the Direct Marketing Association, were expected. So were the court wins for the FCC, whose broad authority over communications issues stood up against the plaintiffs’ attacks. What did come as a surprise was the one-two punch of rulings against the FTC in late September. First, a federal court in Oklahoma City ruled that the FTC didn’t have jurisdiction sufficient to oversee the list. Two days later, another court in Denver ruled that the list was unconstitutional because it treated commercial speech differently than other speech — a direct conflict with the constitutional ruling in the FCC’s case. Wagman’s team of five litigators was under siege. They had hearings scheduled and briefs due within hours of each other in each city. Within 48 hours of the first court ruling, Congress had acted to give the FTC jurisdiction. “For Congress to have that sort of speed,” Wagman notes, “it’s absolutely unprecedented.” The constitutional problems raised by the Denver court remained. At press time both agencies had the authority to administer the Do-Not-Call list pending appeals. The five FCC litigators handling their agency’s appeals is defending its jurisdiction over the Do-Not-Call registry before the 10th U.S. Circuit Court of Appeals. Until the dust settles, the FTC and the FCC will continue assisting each other. “I don’t think anyone’s not on speed dial now,” Snowden says of the frequent cross-agency phone calls. Looks like telemarketers aren’t the only ones who know how to network. Kathrin Weston contributed to this article.

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