Citation Edit

Mainstream Marketing Servs., Inc. v. Federal Trade Comm'n, 358 F.3d 1228 (10th Cir. 2004) (full-text), cert. denied, 543 U.S. 812 (2004).

Factual Background Edit

The plaintiffs, a group of telemarketers, challenged the constitutionality of the National Do-not-call Registry, which allows individuals to register their phone numbers on a national "do-not-call list" that prohibits most commercial telemarketers from calling the phone numbers on that list.[1] The primary issue was whether the First Amendment prevented the government from establishing an opt-in telemarketing regulation that provides a mechanism for consumers to restrict commercial sales calls.[2]

Appellate Court Proceedings Edit

The court, applying the Central Hudson test, unanimously held that the National Do-not-call Registry is a valid commercial speech regulation because it directly advances the government's important interests in protecting personal privacy and reducing the danger of telemarketing abuse without burdening an excessive amount of speech:

[F]our key aspects of the do-not-call registry convince us that it is consistent with First Amendment requirements. First, the list restricts only core commercial speech — i.e., commercial sales calls. Second, the do-not-call registry targets speech that invades the privacy of the home, a personal sanctuary that enjoys a unique status in our constitutional jurisprudence. Third, the do-not-call registry is an opt-in program that puts the choice of whether or not to restrict commercial calls entirely in the hands of consumers. Fourth, the do-not-call registry materially furthers the government's interests in combating the danger of abusive telemarketing and preventing the invasion of consumer privacy, blocking a significant number of the calls that cause these problems. Under these circumstances, we conclude that the requirements of the First Amendment are satisfied. A number of additional features of the national do-not-call registry, although not dispositive, further demonstrate that the list is consistent with the First Amendment rights of commercial speakers. The challenged regulations do not hinder any business' ability to contact consumers by other means, such as through direct mailing or other forms of advertising. Moreover, they give consumers a number of different options to avoid calls they do not want to receive. . . . In addition, the government chose to offer consumers broader options to restrict commercial sales calls than charitable and political calls after finding that commercial calls were no more intrusive and posed a greater danger of consumer abuse. . . . The national do-not-call registry offers consumers a tool with which they can protect their homes against intrusions that Congress has determined to be particularly invasive. Just as a consumer can avoid door-to-door peddlers by placing a "No Solicitation" sign in his or her front yard, the do-not-call registry lets consumers avoid unwanted sales pitches that invade the home via telephone, if they choose to do so. We are convinced that the First Amendment does not prevent the government from giving consumers this option.[3]

The court was convinced that the previous company-specific, opt-out approach, where consumers wishing to be left undisturbed by telemarketers' need to repeat their do-not-call requests to every solicitor who called, was seriously inadequate to protect consumers' privacy from an abusive pattern of calls placed by a telemarketer and proved to be extremely burdensome to consumers.[4] The opt-out approach "gave solicitors one free chance to call each consumer, although many consumers find even an initial unsolicited sales call abusive and an invasion of privacy. To say that one may avoid further offense by turning off the radio when he hears indecent language is like saying that the remedy for an assault is to run away after the first blow. One may hang up on an indecent phone call, but that option does not . . . avoid a harm that has already taken place.[5]

References Edit

  1. 358 F.3d at 1232.
  2. Id.
  3. Id. at 1233.
  4. Id. at 1244.
  5. Id.

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