Legality of do-not-call list upheld

posted Feb 18, 2004

Hey, good news!

A federal court upheld the constitutionality of the National Do Not Call Registry on Tuesday, finally settling a legal battle around enforcement and leaving the popular list in place for the 57.2 million registered.

You can read the opinion yourself from the court, which is graciously providing it online (PDF, Text, WPD).

The summary from the beginning of the opinion:

The four cases consolidated in this appeal involve challenges to the national do-not-call registry, which allows individuals to register their phone numbers on a national "do-not-call list" and prohibits most commercial telemarketers from calling the numbers on that list. The primary issue in this case is whether the First Amendment prevents the government from establishing an opt-in telemarketing regulation that provides a mechanism for consumers to restrict commercial sales calls but does not provide a similar mechanism to limit charitable or political calls. We hold that the do-not-call registry is a valid commercial speech regulation because it directly advances the government's important interests in safeguarding personal privacy and reducing the danger of telemarketing abuse without burdening an excessive amount of speech. In other words, there is a reasonable fit between the do-not-call regulations and the government's reasons for enacting them.

As we discuss below in greater detail, four 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. See Frisby v. Schultz, 487 U.S. 474, 484 (1988). 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 mailings or other forms of advertising. Moreover, they give consumers a number of different options to avoid calls they do not want to receive. Namely, consumers who wish to restrict some but not all commercial sales calls can do so by using company-specific do-not-call lists or by granting some businesses express permission to call. 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 more intrusive and posed a greater danger of consumer abuse. The government also had evidence that the less restrictive company-specific do-not-call list did not solve the problems caused by commercial telemarketing, but it had no comparable evidence with respect to charitable and political fundraising.

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.

Here's another fun snippet. One of the telemarketer's arguments is that the regulation is undereffective (the opinion makes it clear why this is a valid argument in this context; basically, the government must do neither more nor less then is necessary to reasonably advance its interests, and an "undereffective" measure would be unconstitutional... the court cites several relevant examples). The court uses the telemarketing industry's own rhetoric against them to disprove this claim:

The telemarketers asserted before the FTC that they might have to lay off up to 50 percent of their employee
s if the national do-not-call registry came into effect. See 68 Fed. Reg. at 4631. It is reasonable to conclude th
at the telemarketers' planned reduction in force corresponds to a decrease in the amount of calls they will make.

Thus proving the measure will be effective in significantly reducing the number of calls they will make. Oh, sweet Justice, how rarely we taste you but how precious when we do.


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