Volume II

Issue : 5: March 4, 2004

• ICANN Faces Suits over Internet Domain Name Regulatory Practices
• Microsoft Brings Its Battle with Lindows to Canada
• U.S. Federal Trade Commission Levies Fines under the Childrens Online Privacy Protection Act
• California Appeals Court Reverses Order Prohibiting Internet Publication of DVD-Cracking Code
• FDA Sends Warning to Minnesota over its Prescription Drug Website
• Texas Doctor Sentenced to Jail for Prescribing over the Internet
• District Court Enjoins Manufacture and Distribution of DVD copying software
• U.S. Do-Not-Call Registry Does Not Violate the First Amendment
• U.S. Court Rules Extraction of Data by American Company from a Canadian Companys Online Database Does Not Violate DMCA
• UK High Court Asserts Jurisdiction in Internet Libel Case
• U.S. Supreme Court Rules No Recovery against Government for Privacy Act Violations without Actual Damages
• Supreme Court of Canada Rules Law Society's Photocopying Policy Does Not Violate Copyright Law

Home > Volume II > Issue 5: March 4, 2004 > U.S. Do-Not-Call Registry Does Not Violate the First Amendment

U.S. Do-Not-Call Registry Does Not Violate the First Amendment

On February 17, 2004, the United States Court of Appeals for the Tenth Circuit issued a decision upholding the constitutionality of the national do-not-call registry. The decision overturned two lower court decisions that had found that the law infringed the First Amendment right to free speech.

The do-not-call registry was established in 2003. It is a list containing the personal telephone numbers of telephone subscribers who have voluntarily indicated that they do not wish to receive unsolicited calls from commercial telemarketers. So far, 50 million phone numbers have been registered. Because consumers have to register for this list, it is often referred to as an "opt-in" telemarketing regulation. Commercial telemarketers are prohibited from calling numbers on the list and they have to pay an annual fee to access the registry. The rules apply to sellers of goods and services and not to charitable or political fundraising calls. The Court specifically indicated that it was leaving open the question of whether a rule applying to political and charitable calls would be permitted.

The Court cited four primary factors leading to its conclusion that there was no infringement of First Amendment rights:

1. The list restricts only core commercial speech.
2. The registry targets speech that invades the privacy of the home, "a personal sanctuary that enjoys a unique status" under the Constitution.
3. It is an "opt-in" program that puts the choice of whether or not to restrict commercial calls in the hands of consumers. It is not a blanket prohibition on all commercial telemarketing and therefore is appropriately tailored to meet the government's objectives.
4. The do-not-call Registry materially furthers the government's interests in combating the danger of telemarketing and preventing the invasion of consumer privacy. In concluding that the registry is an effective means of furthering the government's interests, the Court pointed to the telemarketers' evidence before the FCC that they would have to lay off up to half their employees in response to the regulations.

The Court also rejected the telemarketers' other arguments, including that the fees for accessing the list are unconstitutional.

To view the decision, visit:
http://www.ca10.uscourts.gov/opinions/03-1429.pdf