On October 7, the Tenth Circuit Court of Appeals greenlighted the Federal Trade Commission (FTC) to continue implementing the National Do Not Call Registry -- a federally maintained list of phone numbers whose owners no longer want to receive telemarketing calls. The order grants the FTC's request for a stay pending a final ruling by the court on a district court's permanent injunction against the Registry. The lower court had enjoined the Registry out of concern that the FTC's decision that the Registry would apply only to commercial telemarketers violated the First Amendment by unfairly favoring non-commercial speech over commercial speech. In its opinion, the Tenth Circuit held that the FTC had met its burden of showing a "substantial likelihood of success" in demonstrating that its decision to restrict only commercial telemarketing would pass First Amendment muster.The Tenth Circuit's examination of the Registry's First Amendment effects uses the three-step test from Central Hudson Gas & Elec. Corp. v. Pub. Serv. Comm'n of N.Y., 447 U.S. 557, 566 (1980). For a speech restriction to pass muster, the government must (1) assert a substantial government interest to be achieved by the restriction, (2) show that the restriction directly advances that interest, and (3) show that the restriction is narrowly tailored to meet that interest. In its analysis of the Registry, the Tenth Circuit combines the latter two factors into one determination of whether there is a "fit between the legislature's ends and the means chosen to accomplish those ends," as in United States v. Edge Broad. Co., 509 U.S. 418, 427-28 (1993).
The court answers the first question in the affirmative, quickly finding that "the FTC's justifications of preventing abusive and coercive sales practices and protecting privacy are substantial government interests."
Regarding the second (combined) factor, the court seeks to determine whether the FTC will likely be able to show that its decision that the Registry apply only to commercial telemarketers is a "reasonable fit" with the government's stated interest. Ultimately, the court finds that the FTC is likely to do so. The court based its conclusion on a series of past actions, and their justifications, by Congress, the FTC, and the Federal Communications Commission (FCC). The court notes that the Telephone Consumer Protection Act, Pub. L. 102-243, and the Telemarketing and Consumer Fraud and Abuse Prevention Act, Pub. L. 103-297, included legislative history and Congressional findings emphasizing the particular harms to consumers of commercial telemarketing. Noting Congress's finding that commercial telemarketing "[has] subjected consumers to substantial fraud, deception, and abuse," the Court holds that the FTC's decision to treat commercial telemarketing differently from noncommercial is likely to prove a reasonable fit to the circumstances.
The Tenth Circuit's stay on enforcement of the lower court's order is only temporary pending a final determination by the Tenth Circuit; that review is on an expedited schedule. Oral arguments will be held in Tulsa, Oklahoma, on November 10, 2003.
With implementation of the Registry back on track, the FTC began accepting complaints of violations on October 11; information about the FTC's enforcement efforts is available at http://www.ftc.gov/bcp/conline/edcams/donotcall/. Consumers who want to add their home or mobile telephone number to the Registry may do so at http://www.donotcall.gov/.