## Facts

- The FTC and FCC adopted rules in 2003 creating a national do-not-call (DNC) registry for residential telephone numbers.
- The rules required most commercial telemarketers to pay to access the registry and to remove listed numbers from calling lists within a specified period.
- The restrictions applied to calls made by or on behalf of sellers of goods or services, but did not apply to charitable or political fundraising calls.
- Exceptions allowed calls where the caller had an established business relationship with the consumer or where the consumer gave prior express written permission.
- Telemarketing firms and trade groups challenged the registry on First Amendment grounds (content/speaker discrimination and burdens on speech), challenged the fee requirement, and argued the FTC lacked statutory authority to create a national registry.

## Issues

1. Whether restricting commercial telemarketing calls through an opt-in national DNC registry, while exempting charitable and political calls, violates the First Amendment.
2. Whether the DNC registry satisfies the Central Hudson test for regulation of commercial speech.
3. Whether fees charged to telemarketers for access to the registry are unconstitutional burdens on speech.
4. Whether the FTC had statutory authority under the Telemarketing and Consumer Fraud and Abuse Prevention Act to establish a national DNC registry.

## Decision

- The court held the DNC rules regulate commercial speech and are evaluated under Central Hudson, not strict scrutiny.
- The court found substantial governmental interests in protecting residential privacy and reducing fraudulent and abusive telemarketing.
- The court held the registry directly advances those interests by reducing unwanted commercial calls to consumers who affirmatively opt in.
- The court held the opt-in, commercial-call-only design is a reasonable fit and is not invalid merely because charitable and political calls are excluded.
- The court upheld the access fees as permissible regulatory fees tied to program administration and enforcement costs.
- The court held the FTC acted within its statutory authority to address abusive telemarketing practices and privacy invasions by creating a national registry.
- The court reversed contrary district court rulings and vacated injunctions that had blocked implementation of the registry.

## Legal Principles

- Commercial telemarketing restrictions are assessed under Central Hudson when the regulation targets commercial speech rather than political or charitable speech.
- Protecting residential privacy and preventing fraudulent or abusive solicitation are substantial governmental interests supporting regulation of commercial telemarketing.
- An opt-in scheme that enforces consumers’ choices not to receive certain commercial calls can directly advance privacy and anti-fraud interests.
- A commercial-speech regulation may be upheld when it is limited to the principal source of the identified harms and preserves alternative channels of communication.
- Differential treatment between commercial and noncommercial speech is generally permissible because commercial speech receives less First Amendment protection than political or charitable speech.
- Regulatory fees that defray the costs of implementing and enforcing a speech-related program are permissible when not structured as a discriminatory penalty on speech.
- Statutory authority to prohibit abusive telemarketing practices and protect consumer privacy may include authority to create a national do-not-call registry.

## Conclusion

The Tenth Circuit upheld the national do-not-call registry as a constitutional regulation of commercial telemarketing under Central Hudson, sustained the telemarketer access fees as cost-based regulatory fees, and held the FTC had statutory authority to establish the registry, dissolving lower-court barriers to its implementation.


Mainstream Mktg. Servs., Inc. v. F.T.C., 358 F.3d 1228 (10th Cir. 2004)