Faculty Scholarship 1994 - Present

The Do-Not-Call Registry Trumps Commercial Speech

On January 29,2003, the Federal Trade Commission (FTC) promulgated its final, amended Telemarketing Sales Rule establishing the nationwide do-not-call registry and prohibiting telemarketers from calling phone numbers consumers listed on the registry. The telemarketing industry affected by the Telemarketing Sales Rule is huge, generating $275 billion dollars annually, employing roughly 5.4 million workers in the United States, and spawning an estimated 104 million telephone calls per day. The national registry permits consumers who do not want to receive telemarketing calls to add their phone numbers to the registry via a toll-free telephone call or the internet. Telemarketers governed by the Telemarketing Sales Rule are prohibited from calling, and must "scrub" their phone lists of, numbers placed on the registry. They do so by periodically accessing the registry through a secure website to ascertain what numbers, sorted and available by area code, have been listed, and then removing those numbers from their calling list. Telemarketers are also required to pay annual fees for access to the registry data based on the number of area codes of data the company accesses, and those fees are used "only to offset the cost of activities and services related to the implementation of the Telemarketing Sales Rule. The national do-not-call registry was created for the express purpose of reducing unwanted telephone solicitations. Notably, only commercial telemarketers, i.e., those calling behalf of sellers of goods and services, are subject to the do-not-call registry requirements. Because the do-not-call registry is designed to reduce commercial solicitations via telephone, but does not restrain charitable solicitations via telephone, the Telemarketing Sales Rule treats commercial speech differently from charitable solicitation speech, thereby creating a fascinating arena in which to compare the relative reach of First Amendment protection to each type of speech. This article will examine:(1) the legislative precursors to the do-not-call registry in order to better understand the reasons commercial telephone solicitations are treated differently from charitalbe telephone solicitations;(2) the comparative First Amendment protection accorded commercial and charitable solicitation speech and the resulting impact on permissible regulations of each type of speech; and (3) the impact of First Amendment considerations on the implementation of the national do-not-call registry and its disparate impact on commercial solicitation and charitable solicitation speech.