The National Do Not Call Registry is a list of the personal telephone numbers of subscribers who do not wish to receive unsolicited telephone calls from commercial telemarketers.

Telemarketers allged the list violated their First Amendment rights

In 2003 the Federal Trade Commission (FTC) and the Federal Communications Commission (FCC) passed rules authorizing the creation of such a registry to protect consumer privacy and to prohibit abusive telemarketing practices. Commercial telemarketers generally are prohibited from calling any phone numbers on the do not call list. Consumers can register both their home and mobile numbers, which will remain on the list for five years. Thus the registry is an opt-in system.

When launched in June 2003, the registry drew the immediate ire of several telemarketing groups, who alleged a violation of their First Amendment rights. The challenging groups also contended that the registry violated the First Amendment by exempting charitable and political fundraising calls.

Circuit court upheld the registry

In the 2004 case Mainstream Marketing Services, Inc. v. Federal Trade Commission, the Tenth Circuit Court of Appeals upheld the registry, finding it a reasonable restriction on commercial speech. The appeals court wrote: “Just as a consumer can avoid door-to-door peddlers by placing a ‘No Solicitation’ sign in his or her front yard, the do-not-call registry lets consumers avoid unwanted sales pitches that invade the home via telephone, if they choose to do.” In making its ruling, the appeals court relied on the U.S. Supreme Court’s decision in Rowan v. U.S. Post Office Department (1970) in which the high court upheld the right of homeowners to refuse unsolicited mailings. The appeals court rejected the argument that the law was an unconstitutional, content-based restriction on speech because it singled out commercial calls while allowing charitable and political calls. According to the court, “commercial calls were more intrusive and posed a greater danger of consumer abuse.”

Numerous states have passed similar do not call laws to protect consumers from unwanted commercial sales calls.

David L. Hudson, Jr. is a law professor at Belmont who publishes widely on First Amendment topics.  He is the author of a 12-lecture audio course on the First Amendment entitled Freedom of Speech: Understanding the First Amendment (Now You Know Media, 2018).  He also is the author of many First Amendment books, including The First Amendment: Freedom of Speech (Thomson Reuters, 2012) and Freedom of Speech: Documents Decoded (ABC-CLIO, 2017). This article was originally published in 2009.‚Äč

Send Feedback on this article