Court of Appeals Allows FTC to Enforce Do-Not-Call Registry

Date: Oct 08, 2003

On October 7, 2003, the U.S. Court of Appeals for the Tenth Circuit granted the Federal Trade Commission's ("FTC's") request for a stay of a Colorado district court order preventing the FTC from implementing the national Do-Not-Call registry. On September 25th, the district court held that the FTC's rules creating the registry are unconstitutional because they restrict commercial telemarketing calls but not charitable ones and enjoined the FTC from enforcing them. The Tenth Circuit concluded that the FTC has demonstrated a substantial likelihood of success on appeal on its contention that the registry directly advances the FTC's interests in preventing abusive and coercive sales practices and protecting consumer privacy and is narrowly tailored.

Until this ruling, neither the FTC nor the Federal Communications Commission ("FCC") has been able to implement and enforce the registry, since the district court also prevented the FTC from sharing the registry with the FCC and the FCC has been unsuccessful in its attempts to obtain a copy of the registry from the Direct Marketing Association.

The Tenth Circuit also ordered expedited review of the FTC's petition for review, with oral argument scheduled for November 10, 2003. Equally interesting, however, is the Court's comment that it is '"relevant that the national do-not-call list is of an opt-in nature, which provides an element of private choice and thus weighs in favor of a reasonable fit." In other words, consumers must elect to be placed on the Do-Not-Call list. Those who do not can receive telemarketing calls, a point relevant to related debates about whether unsolicited faxes and e-mails should be subject to an initial opt-in or opt-out regime.

For more information on telemarketing, Do-Not-Call, Do-Not-Fax and spam laws, contact Sheila A. Millar at (202) 434-4143, or by e-mail at millar@khlaw.com or Tracy P. Marshall at (202) 434-4234, or by e-mail at marshall@khlaw.com.