The U.S. Supreme Court has rejected an appeal of a lower court ruling that the national Do-Not-Call registry does not infringe on free speech rights.
On October 4, 2004, the High Court let stand without comment a lower-court ruling that the popular list, which now includes about 62 million consumers who have opted not to be called by telemarketers, is constitutional.
“We hold that the Do-Not-Call registry is a valid commercial speech regulation because it directly advances the government's important interests in safeguarding personal privacy and reducing the danger of telemarketing abuse without burdening an excessive amount of speech,” the lower court found. The decision by the Tenth Circuit Court of Appeals reversed a Colorado district court that held that the list unfairly discriminated against commercial speech.
The year-old registry, which is enforced by the Federal Trade Commission and the Federal Communications Commission, subjects telemarketers to fines of up to $11,000 for calling a number on the list. Both state and federal agencies have brought claims against alleged violators of the statute.
The American Teleservices Association, Mainstream Marketing Services Inc., and TMG Marketing Inc. asked the Supreme Court to take the case. They contended that the list violated the First Amendment, unfairly excluded political and charitable solicitations from its purview, and was redundant of less restrictive regulations that already let consumers block unwanted calls. The Direct Marketing Association, the other group that originally challenged the program, chose not to join the others on appeal.
“This case is a cautionary example of what happens when federal agencies allow perceived political imperatives to override constitutional concerns,” Robert Corn-Revere, an attorney representing the telemarketers, said in the appeal.
The Justice Department defended the list, arguing that telemarketing has become “a growing intrusion into everyday life.” It said the regulations do not establish a government-imposed ban on speech that some people might want to hear. Rather, “the regulations establish a framework to enforce consumers' own choices about commercial speech and telephone privacy in their homes.”
Significance: With the Supreme Court's ruling, the national Do-Not-Call list is now a permanent fact of life for telemarketers. With the list of consumers on the registry growing daily and the FTC and states poised and ready to prosecute violators, telemarketers are well advised to comply with the rules.