Pursuant to enabling statutes, two federal administrative agencies— the Federal Trade Commission (FTC) and the Federal Communications Commission (FCC) — created the national do not call registry. The national do not call registry is a list that contains the personal telephone numbers of telephone users who have voluntarily placed themselves on this list, indicating that they do not want to receive unsolicited calls from commercial telemarketers. Commercial telemarketers are prohibited from calling phone numbers that have been placed on the do not call registry. Telemarketers must pay an annual fee to access the phone numbers on the registry so that they can delete those numbers from their solicitation lists. The national do not call registry restrictions apply only to telemarketers’ calls made by or on behalf of sellers of goods or services. Charitable and fund raising calls are exempt from the do not call registry’s restrictions. Persons who do not voluntarily place their phone numbers on the do not call registry may still receive unsolicited telemarketers’ calls.
Mainstream Marketing Services, Inc., and other telemarketers sued the FTC and the FCC in several lawsuits, alleging that their free speech rights were violated and that the do not call registry was unconstitutional. The FTC and FCC defended the list, arguing that unsolicited telemarketing calls constituted commercial speech that could properly be regulated by the government’s do not call registry’s restrictions. The separate lawsuits were consolidated for appeal. Is unsolicited telemarketing calls commercial speech that is constitutionally regulated by the do not call registry restrictions? Do telemarketers act ethically in calling persons with their promotions and sales pitches? Did the telemarketers act ethically in challenging the law? Mainstream Marketing Services, Inc. v. Federal Trade Commission and Federal Communications Commission, 358 F. 3d 1228, 2004 U. S. App. Lexis 2564 (United States Court of Appeals for the Tenth Circuit, 2004)