Round 1: A judge rules that the FTC does not have the authority to enforce the Do-Not-Call list, so Congress (who has the power to give the FTC that authority) passes a law explicitly granting it to the FTC. So far so good. Checks and balances are working as they’re supposed to.

Round 2: Another judge rules that the list is unconstitutional because it discriminates against commercial calls. Never mind that that traditionally, commercial speech does not have the same protections as personal, political, and other forms of speech. (Consider truth-in-advertising laws.)

The way I see it, there are two obvious solutions: Either appeal the ruling (which is inevitable) or comply with it by removing the loopholes for charities and political campaigns. Which would probably get them in more first amendment trouble.

So today, the FCC has said they will enforce the list right on schedule. OK, it’s something I wouldn’t have thought of… mainly because it doesn’t seem like it would solve the problem.

Now, I hate getting calls from telemarketers, but I just don’t see how shuffling the list to another agency resolves the problem of constitutionality. I’ve only skimmed the ruling [previously available from the court’s website] (it’s 34 pages and I’m at work, it’s not as if I can read the whole thing right now!), but it seems pretty clear on the point that (as the judge sees it) it’s the federal government that can’t enforce the list in its present form, not the FTC specifically.