The National Do-Not-Call Registry, which is similar to the UK's
Telephone Preference Service, gives consumers the right to opt-out
of receiving telemarketing calls at home. It began operating in
October last year and already contains over 60 million phone
numbers.
Under the Registry rules, telemarketers are required to clean
their lists every three months of those numbers that have
opted-out. Telemarketers that call a number on the list are liable
for a fine of up to $11,000 per call. Political and charitable
organisations are permitted to call consumers, but they must follow
consumer requests not to be called again.
Last October, just before the official launch of the Registry,
Judge Edward Nottingham from Denver ruled that the list violated
free-speech protections and was therefore unconstitutional.
His argument was that the Registry rules do not apply equally to
all kinds of speech, blocking commercial telemarketing calls but
not calls from charities. He wrote: "The FTC has chosen to entangle
itself too much in the consumer's decision by manipulating consumer
choice."
The Registry was allowed to begin operations pending an appeal
by the Federal Trade Commission, which runs the list. The US Tenth
Circuit Court of Appeals then overturned the lower court ruling in
February this year, upholding the constitutionality of the
Registry.
This, said the Appeals Court, was because it was an opt-in
service, restricts only commercial sales calls, and targets "speech
that invades the privacy of the home, a personal sanctuary that
enjoys a unique status" under the constitution.
"We hold that the do-not-call registry is a valid commercial
speech regulation," it said, "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 telemarketers behind the original claim then sought leave to
appeal that decision to the US Supreme Court – an application that
has now been rejected. The case for telemarketers, therefore,
appears to be finished.
