Federal Trade Commission
Protecting America's Consumers
Telemarketers Do Not Have a Constitutional Right to Make Unsolicited Phone Calls
Federal Trade Commission Chairman Timothy J. Muris today presented FTC testimony before the Senate Committee on Commerce, Science, and Transportation on the status of the FTC’s National Do Not Call Registry. Muris praised Congress for its quick action to ratify the Registry in light of a recent court ruling from Oklahoma City opposing it on the grounds that the FTC lacked the authority for its creation. The testimony also criticizes a second ruling from the U.S. District Court in Denver that the Registry is unconstitutional, and affirms the FTC’s belief that the FTC is likely to succeed on the merits of its appeal of that ruling. “The district court’s decision reached an unprecedented conclusion that telemarketers have a constitutional right to continue telemarketing calls to consumers who have indicated that they do not want these calls,” Muris said.
Following a brief description of the process by which the FTC created the National Do Not Call Registry and a summary of the Oklahoma City and Denver court rulings, Muris explained some of the challenges that have arisen out of the Denver ruling. The testimony states that the Federal Communications Commission (FCC) has pledged to enforce its do not call rules against telemarketers that have obtained the Do Not Call Registry from the FTC. The administration of its rules will be more difficult because of the Denver court’s ruling.
According to the testimony, the Denver ruling also jeopardizes states’ ability to enforce their do not call laws. Muris explained that the FCC’s Telephone Consumer Protection Act (TCPA) prohibits any state that has its own do not call registry from enforcing it unless its registry includes the phone numbers of consumers from that state who are also on the National Registry. Muris said that it is unclear how states will access the National Registry to enforce their own laws in light of Denver Judge Edward W. Nottingham’s decision: “The decision casts doubt on the ability of states to enforce their do not call laws,” the testimony states.
The testimony continues with an analysis of the Denver court’s argument, criticizing the court’s interpretation and application of two Supreme Court cases, Central Hudson Gas & Electric Corp. v. Public Service Commission of New York and City of Cincinnati v. Discovery Network, Inc. Muris stated that the U.S. District Court “appears to have ruled out any distinction between commercial and non-commercial speech” in its application of these cases, and that the reasoning is “erroneous” for three reasons:
- First, the court ruling supposes that calls from charities are as invasive as commercial calls. In enacting the TCPA, Congress concluded that “non-commercial calls are less intrusive to consumers because they are more expected.” Additionally, for eight years, the TSR has contained a company-specific do not call provision that applied only to commercial telemarketers until March 2003. The record shows that commercial telemarketers frequently ignored consumers’ requests to be put on company-specific lists, but there was no comparable evidence that the company-specific provision, with respect to charitable solicitors, will not achieve the FTC’s goal of protecting consumers from unwanted telemarketing.
- Second, in Discovery Network, the Supreme Court ruled that it was unconstitutional to discriminate against a type of newsrack advertising to prevent clutter on Cincinnati sidewalks, because only a small percentage of existing newsracks were covered. By contrast, the TSR’s Do Not Call Registry provisions cover nearly 80 percent of telephone solicitations.
- Third, the Do Not Call Registry does not ban any speech, it simply offers consumers a choice about what speech is welcome in their homes. The Registry allows commercial telemarketing to be directed to all consumers except those who have placed their numbers on the list.
The testimony states that the Registry now contains more than 51.5 million phone numbers. “All these consumers have stated that they want an end to telemarketing calls,” Muris said. He explained that if the Denver court’s order is not stayed, these consumers will continue to receive abusive telemarketing calls. He also indicated that, given quick action by Congress to ratify the Registry, allowing the district court’s order to stand would effectively nullify an Act of Congress. “We hope that the strong public interest embodied in Congress’s recent enactment will not be thwarted,” Muris said.
The testimony concludes by reiterating the FTC’s priority to give consumers a choice about the number of telemarketing calls they receive at home. Muris noted that the FTC made “every effort” to accommodate the telemarketing industry’s concerns, including considering comment from sellers and telemarketers and consistently revising the Rule to accommodate issues like established business relationships with consumers. “Despite our efforts, the telemarketers have used every weapon in their formidable arsenal to deprive consumers of choice,” Muris said. “The FTC will continue to make every effort to give consumers an effective choice about stopping unwanted and intrusive telemarketing calls.”
The Commission vote to approve the testimony and place a copy on the public record was 5-0.
Copies of the testimony are available from the FTC’s Web site at http://www.ftc.gov and also from the FTC's Consumer Response Center, Room 130, 600 Pennsylvania Avenue, N.W., Washington, DC 20580. The FTC works for the consumer to prevent fraudulent, deceptive, and unfair business practices in the marketplace and to provide information to help consumers spot, stop, and avoid them. To file a complaint, or to get free information on any of 150 consumer topics, call toll-free, 1-877-FTC-HELP (1-877-382-4357), or use the complaint form at http://www.ftc.gov. The FTC enters Internet, telemarketing, identity theft, and other fraud-related complaints into Consumer Sentinel, a secure, online database available to hundreds of civil and criminal law enforcement agencies in the U.S. and abroad.
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