• Do Not Call Registry Gets the Call
  • March 5, 2004
  • Law Firm: Reed Smith LLP - Pittsburgh Office
  • The United States Court of Appeals for the Tenth Circuit has ruled that the Do-Not-Call registry is lawful and "prevents the invasion of consumer privacy." The court found that the registry is not a violation of the Constitution and is a permissible regulation of commercial speech because businesses may contact consumers by other means, such as direct mail or advertisements. Further, the court ruled that the Registry is a permissible limit upon speech despite the fact that it limits only commercial solicitations, not political or charitable calls. Both the Direct Marketing Association and the American Teleservices Association are considering appealing the decision to the United States Supreme Court.

    The Direct Marketing Association still maintains that, setting aside the decision, problems with the registry remain, including the lack of proper authentication procedures in the Internet registration process, the lack of one master list (dozens of states have their own lists), and the high cost of the list (over $7,300 annually), and additional compliance challenges for businesses.

    Why This Matters: While telemarketing is considered by many consumers a nuisance, regulation that effectively bans a marketing practice is a dangerous precedent for First Amendment protection of commercial speech. In this case, the court held that as long as there is a legitimate government concern and the remedy is an effective way to solve the problem, the regulation is legal. Sadly, the court in this case found that the feared loss of 50% of the jobs in the telemarketing industry was evidence of the efficiency of the government action. Presumably, unemployment is an acceptable justification for the erosion of commercial speech.