Federal Trade Commission (FTC) and Federal Communications Commission (FCC) regulations prohibit most commercial telemarketers from calling numbers on the national do-not-call registry. Telemarketing companies challenged the regulations in the District of Colorado and the Western District of Oklahoma. Both courts struck down the do-not-call registry. The Colorado court held that the regulations violated the First Amendment, and the Oklahoma court held that the FTC lacked statutory authority to enact the registry rules. The appeals were consolidated and tried before the Tenth Circuit Court of Appeals. The court reversed the decisions of the district courts and held that, inter alia, the do-not-call registry’s restrictions on commercial speech do not violate the First Amendment.The court applied a three-prong test to determine whether the do-not-call registry is a constitutional restriction on commercial speech. First, the government must have a substantial interest that justifies the regulation. Second, the regulation must directly advance the governmental interest. And third, the regulation must be narrowly tailored so that it does not restrict more speech than is necessary in pursuit of the governmental interest. With regard to the first prong of the test, the court found that the do-not-call registry addresses two governmental interests: (1) an interest in protecting the privacy of individuals in their homes and (2) an interest in protecting consumers from abusive and coercive solicitation.
In evaluating the second prong, the court examined the effectiveness of the regulations in achieving the government’s goals. The do-not-call restrictions are underinclusive in that they will not prevent all calls that threaten the governmental interests; however, Congress, the FTC, and the FCC have all found that the type of calls blocked by the registry, commercial sales calls, are the most to blame for the problems the government is trying to address. The do-not-call registry, therefore, will prevent a substantial number of the blameworthy calls. The court, therefore, held that the do-not-call registry directly advances the government’s interests.
To satisfy the third prong, the regulations must not restrict more speech than is necessary to advance governmental interests. The court held that the registry satisfies this requirement because of its opt-in feature. Calls to an individual are only restricted if that individual chooses to register their phone number with the do-not-call registry. This type of regulation based on private choice is less restrictive than laws that prohibit speech directly. The registry, for example, only prohibits the unwelcome calls that cause the problems that the government is trying to prevent. In addition, telemarketers may still contact consumers through less-intrusive alternative means, such as through direct mail. The do-not-call registry regulations, therefore, are narrowly tailored to the governmental interests in protecting the privacy of individuals in their homes and protecting consumers from abusive and fraudulent solicitation. Because all three prongs of the test are satisfied, the court held that the do-not-call registry is not an unconstitutional restriction on commercial speech.