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September 24, 2003

WHO IS LEE R. WEST?....AND WHY DO 51 MILLION PEOPLE HATE HIM?....Judicial activism has finally gone too far:

A government plan to allow millions of Americans to block telemarketing calls to their homes was stalled yesterday by a federal judge who said Federal Trade Commission overstepped its authority to create a national do-not-call list.

The decision by U.S. District Judge Lee R.West in Oklahoma City threw a large question mark over the federal government's plan that was to go into effect next week.

....The ruling, handed down late Monday, caught government officials by surprise and today FTC officials and key congressmen were scrambling to try to make sure the list goes into effect as planned next Wednesday.

I am now ready to become a Republican. Unless this Lee R. West guy is a Republican, of course, in which case I will register myself a second time as a Democrat.

Posted by Kevin Drum at September 24, 2003 04:49 PM | TrackBack


Comments

Kevin,

Looks like justice West is a Democrat, and probably a liberal one at that. Or was at one time. He was appointed to the federal bench by Jimmy Carter in '79:
http://www.okcu.edu/law/press/nrl03020.asp

Posted by: bling at September 24, 2003 05:01 PM | PERMALINK

Ironically (is there such a thing anymore?) his home address and phone are being propagated across the internet. So sorry, punk.

(Hey, if he was in Colombia he'd be blown up. We American lefties just harrass.)

Posted by: squiddy at September 24, 2003 05:02 PM | PERMALINK

Okay, so someone please tell me if I'm wrong about this. According to what I read, the judge's opinion goes like this:

The FTC was granted the ability to fund the creation, distribution, and regulation of a federal do-not-call list. But because the legislation did not explicitly create the Do-not-call list itself, the FTC has no regulatory ability to create it itself; Congress must explicitly create it.

Is that the way it goes? If so, wow, this is, like, the biggest technicality ever.

Posted by: Kenneth G. Cavness at September 24, 2003 05:07 PM | PERMALINK

Since I'm busy posting at the TOP of the comments sections today, I should probably add to this one, too. Even if someone beats me because I tend to write too much.

I'm in direct mail. Fundraising for nonprofit (liberal) organizations, but it's the same business. I've done commercial stuff, too, and I have enormous respect for many of the direct mail writers and consultants I've known over the years. (And heaps of contempt for quite a few as well).

I can't tell you how many of us, in this profession, are mad as hornets at "our" trade group, the Direct Marketing Association. This lawsuit stinks, and their support of the telemarketeers stinks too. Problem is that they define "direct marketing" as broadly as possible: direct mail, "advertorials" in magazines and newspapers, sales pitches on TV ... and, of course, telemarketing.

The damned telemarketers seem to have an incredible grip on the DMA. They pushed this lawsuit, of course, and they tend to really get their way in the organization. Nevermind that, to most of us, they're "johnny come latelies" to the field. Nevermind that most of us, like most people, HATE telemarketing calls. Nevermind that most of us cheerfully avoid that end of the business altogether.

I always carefully make the distinction between cold prospect telemarketing (where they call you to pitch something, and you've never heard of them before in your life), and calls firms make to established customers (usually made with some kind of advance "permission"). The latter, most people will agree, isn't quite so bad. The former is infuriating to ... well, at least 51 million of us.

Let us all hope this dimwitted court decision is overturned quickly. I know all of the DMA's legal theories about it. They're b.s. This is NOT a free speech issue. It is a question about whether or not strangers have a right to intrude in your home, using equipment you paid for on lines you pay for, in order to steal your time. Period.

Some folks hate direct mail, too, but -- usually -- far less strenuously. Direct mail is something you can toss unread, if you want, or at least read at your leisure. Most of the printed elements can be recycled without problem. And, most direct mail firms would genuinely PREFER not to mail to you if you really aren't interested; telemarkets say the same thing, but I can assure you that is NOT what they believe.

They believe that calling lots of numbers and getting a crack at people with their pitch is the ONLY important thing. They are mostly concerned about telemarketing lists being accurate (that is, to live phones answered by the people listed to them), rather than whether or not they have a "history" of being telemarketing-responsive. (Responsiveness is important, too, but one of the things about telemarketing is the secretiveness of it. No one actually sells lists of indisputably-responsive consumers, not in the telemarketing world).

So here's a second to your hearty condemnation of that judge!

-- Roger

Posted by: Marsman at September 24, 2003 05:11 PM | PERMALINK

Bling, I found the same link and I wasn't sure
Judge West was a Democrat, based on:

"President Richard Nixon appointed Judge West to the Civil Aeronautics Board, Washington, D.C., in 1973."

Posted by: Richard Campbell at September 24, 2003 05:12 PM | PERMALINK

West was appointed a district judge by Henry Bellmon, who was Oklahoma's first Republican governor. He was later appointed to the Civil Aeronautics Board by Richard Nixon, then appointed to the U.S. District court by Jimmy Carter. So I wouldn't jump to any conclusions about his affiliation, nor do I think it's all that relevant.

Posted by: Peter MacLeod at September 24, 2003 05:12 PM | PERMALINK

Looking at the judgement and the discussions, there's good and bad news.

The bad: The judge really had no choice. Congress passed a law saying the FCC could define rules on running a Do-Not-Call list, and could run such a list. However, while the FCC did make the rules, they passed the actual running of the list to the FTC. The DMA sued that the FTC had no legal authority from Congress to run such a list -- and there's plenty of precedent saying that only Congress could have made such a transfer, and they didn't. Therefore, the FTC list is illegal.

The good: There's nothing in this ruling that outlaws a national Do-Not-Call list. There's two obvious fixes -- either the FCC takes the list back from the FTC, and runs it, or Congress explicitly allows the transfer to the FTC by legislation.

Posted by: Erik V. Olson at September 24, 2003 05:48 PM | PERMALINK

Unfortunately, bling is correct. West was appointed by Carter. However, you should reconsider your registration. Remember that he's only one judge, and judges can be unpredictable.

Posted by: Steve at September 24, 2003 05:55 PM | PERMALINK

Marsman:
If your corner of the Direct Marketing universe is unhappy with the DMA, why not quit and form your own trade association, responsive to your priorities? At a minimum, I would think the threat of losing whatever share of the membership revenues you guys represent might make DMA sit up and take notice of your concerns.

Posted by: Flory at September 24, 2003 05:58 PM | PERMALINK

Ah, what we need is for Dave Barry to perform another pulic service and include Judge West's personal phone numbers, as well as perhaps that of the court.

Posted by: Raymond Bridge at September 24, 2003 06:33 PM | PERMALINK

I don't know about you folks, but volunteering information to be put on a list that promises something is pretty pie in the sky.

Now, there's a list of real people, 42-million strong, and the data base must be worth millions.

Isn't it better just to hang up? Or to shut the ringer down? In a world where you can have more than one phone, why is your ACCURATE phone number on your checks? You control what gets printed.

In this home I shifted my 'main' number to my modem long ago. So, I give out this wonderful phone number that rings and rings 'somewhere' but not here. Not in my ears.

And, I also can hang up the phone. Who says I have to answer by name? I'm in the classroom? You're taking attendence?

That a judge would do this is NO surprise.

That we let rulings come down the pike without having the judges provide urine for drug testing, now that's a surprise! These athletes should prove they're qualified and not just dazed when they go for the gold of a headline.

It's the least our government could do to assure us all of 'quality.'

Posted by: Carol in California at September 24, 2003 07:07 PM | PERMALINK

The joys of the internet

Judge Lee R. West chambers: http://www.okwd.uscourts.gov/west.htm
T: (405) 609-5140
F: (405) 609-5151

His home phone number is also listed on the internet as well, but I feel inhibited about including it.

To be fair, if Congress delegated power to the FCC to create the Do Not Call list, then the authority lies with it and not the FTC.

Posted by: ponderosa at September 24, 2003 08:10 PM | PERMALINK

Flory:
If [you're]... unhappy with the DMA, why not quit and form your own trade association, responsive to your priorities?
Probably for much the same reason that hunters don't quit the NRA, even if they dislike cop-killer ammunition and unregulated handguns. Like Marsman, they regard the organization as "theirs" and the people who are driving the agenda as "johnny-come-latelies". For another thing, they find membership in a large and powerful organization more useful than membership in a small and powerless one.

That's not an excuse, just an explanation.

Posted by: Keith at September 24, 2003 08:22 PM | PERMALINK

It's an admin law thing. The statute empowers regulations to be made by the executive by the statute is a bit vague as to who gets to create the list - it could be either the FCC or the FTC. If it was in fact the FCC then the FTC would be acting ultra vires, as the term goes.

I think this decision is prudent. If he'd let it go, the DMA would have tried to circumvent the law and get any attempt at fines judicially reviewed on the ultra vires grounds. Which means more time, more court wrangling, possible injunctions over the list etc..

Posted by: Downunder at September 24, 2003 09:50 PM | PERMALINK

Flory wrote:

"Marsman:
If your corner of the Direct Marketing universe is unhappy with the DMA, why not quit and form your own trade association, responsive to your priorities? At a minimum, I would think the threat of losing whatever share of the membership revenues you guys represent might make DMA sit up and take notice of your concerns."


Good idea ... except I'm just a little ol' freelance writer these days, and am NOT a member of the DMA. The groups I used to be associated with, some of them, were members. Whether they are any longer I do not know, but I do know from the trade magazines that there are quite a few members very unhappy about the organization's tendency to carry water for the telemarketing end.

Oh, and some former members HAVE split off ... or at least formed their own little "specialized" organizations. Fundraisers, for example, are often in smaller, separate trade groups.

But it's a big, big industry out there, and MOST of those in it aren't about to walk away from their main trade organization. DMA doesn't exactly ignore the needs of any segment, insofar as I know, so even if folks gripe about it favoring telemarketers, that doesn't mean they're unhappy with everything it does. (Also, I tend to think a lot of folks gripe about the telemarketing more because they think that segment of the industry reflects badly on us all, rather than any actual distaste for telemarketing per se. Just my hunch).

Finally, you'll notice that I never suggested that most of the industry -- even those in it who dislike telemarketing -- are in any particular respect liberal. Hell, is ANY industry in this country in any particular respect liberal? Plenty of those who dislike telemarketing dislike all forms of guv'ment regulations even more. Alas!

-- Roger

Posted by: Marsman at September 24, 2003 10:54 PM | PERMALINK

Hey guys, don't harass the judge at his telephone. It's not nice and it's not fair. He's doing his job and (at least from the press reports) there's a legal basis for his decision. This agency stuff is really technical (it's one area where the law is almost all technicality), but that may not be so bad in some ways. I mean, Congress should be in charge and agencies should be able to do only what Congress authorizes them to. Otherwise, their constitutionality and democratic underpinnings would really be suspect. The judge may be wrong, or he may be right. If he's wrong, there's an appeal. If he's right, 50 million votes say Congress will fix the situation.

Posted by: David in NY at September 25, 2003 07:38 AM | PERMALINK

Posting the idiot judge's phone numbers is wrong WRONG WRONG!. Not all of the wackos are right-wingers. Would your conscience be able to handle some lefty Eric Rudolph or Paul Hill taking self-authorized action?

Expose his actions, his affiliations, sure. But the moron is still a human being and as such is still entitled to a certain amount of privacy.

We get enough bad behavior from the Rethugs, so let's not join their crew by acting like them.

Posted by: pessimist at September 25, 2003 07:39 AM | PERMALINK

I agree with pessimist, except that the judge may not even be an idiot.

Posted by: David in NY at September 25, 2003 07:45 AM | PERMALINK

From my reading this appears to have been a pretty unexceptional legal ruling. Like most "first impression" cases, good arguments can be made either way. This means the judge was just doing his job. People are attacking him without stopping to think that this is a technical problem that can be fixed pretty easily: if Congress thinks a "no call" list is a good idea it can say the FTC can run one, or it can direct the FCC to run it. Nothing in the decision says there can't be a "do not call" list, only that it wasn't set up the right way. People should calm down.

Posted by: Stuart at September 25, 2003 09:04 AM | PERMALINK

Do we really want judges to rule certain ways on the law because they are afraid of public reaction? Should the judge be harassed until he changes his verdict? Do we really want pure mob rule?

Posted by: Damon at September 25, 2003 09:10 AM | PERMALINK

I agree with David, everyone should take a chill pill. He's only pointing out an inconsistancy that the house will fix by eod today(9.25). Why is no one busting the telemarketing industry for fighting this while expressing "deep concern" for the millions who have already signed up? Deep concern is great but they still don't want to do anything proactive! They could adopt the list willingly, but they'd rather try to kill it wholesale while stating that their hands are clean of blood, Nice try.

Posted by: Brett at September 25, 2003 09:58 AM | PERMALINK

From CNN.com - "Fifty million Americans can't be wrong," Rep. Billy Tauzin, R-Louisiana, said, referring to the number of people who have signed up to block unwanted solicitations'

If fifty million Americans can't be wrong, how come President Al Gore isn't sitting in the White House...? All together now: "coup de etat"...

The Republican House is rushing through legislation specifically overturning the logic on which this decision is based. Huzzah..!Finally, after three years they get something right.

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