Leave Me Alone! The Delicate Balance of Privacy and Commercial Speech in the Evolving Do-Not-Call Registry

I. INTRODUCTION II. THE BEGINNING OF THE NATIONAL DO-NOT-CALL REGISTRY A. Telephone Consumer Protection Act B. Telemarketing Consumer Fraud and Abuse Prevention Act C Telemarketing Sales Rule and the Do-Not-Call Implementation Act III. FIRST AMENDMENT PROTECTION OF THE DO-NOT=CALL REGISTRY: MAINSTREAM MARKETING SERVICES K FTC IV. THE 2008 AMENDMENT TO THE Do-NOT-CALL REGISTRY A. The Do-Not-Call Registry and Its Subsequent Amendment B. Constitutional Analysis of the 2008 Amendment 1. Changes in the Marketplace 2. Legal Landscape 3. Success of the Process of Purging Obsolete Numbers 4. Popularity of the Registry V. CONCLUSION I. INTRODUCTION Before the do-not-call list was established, the average consumer could expect an unsolicited sales call every two to three days. (1) To give consumers a way to avoid this problem, in 2003 the national do-not-call registry went into effect, prohibiting telemarketers from contacting any consumer who chose to register his or her telephone number on the list. Registering for the list can be done over the phone or on the Internet, literally taking less than one minute. This gave consumers the opportunity to "opt-out" of receiving telemarketing phone calls on the condition that they re-register their phone numbers every five years. The five-year requirement would ensure that the number is still accurate and also that the consumer wanted to remain on the list. Consumers nationwide did not hesitate to jump at such an opportunity. By 2004, more than fifty million phone numbers had been registered, (2) with that number nearly tripling by 2007. (3) Despite, or more likely because of, the registry's popularity, telemarketing firms across the country challenged its validity on the grounds that it was an unconstitutional regulation of commercial speech. (4) The Tenth Circuit has addressed the issue, holding that the regulation adequately satisfied the narrow tailoring requirement in order to remain within the bounds of the Constitution, and ultimately "[upheld] the do-not-call list in its entirety," (5) resulting in millions of Americans cheering for their privacy. Fast forward to 2007; about the time fifty million Americans should be thinking about re-registering their numbers on the list. The Federal Trade Commission (FTC) released a statement pledging that it would no longer require consumers to re-register their numbers every five years. (6) The bill was subsequently signed by the President and went into effect on February 15, 2008. (7) On its face, this does not seem like a big deal, and most people would not think twice about the potential constitutional implications of the decision. However, when attempting to strike the delicate balance between a consumer's right to privacy and the First Amendment's protection of commercial speech, a seemingly trivial change such as this has serious constitutional repercussions. Section II of this Note explores the origins of the national do-not-call registry--dating back to 1991--and examines each step of the process that brought about the registry. Section III takes a close look at the Tenth Circuit case of Mainstream Marketing Services v. Federal Trade Commission, (8) with an eye toward the test used to determine the constitutionality of commercial speech regulations that was elucidated in Central Hudson Gas & Electric Corp. v. Public Service Commission. (9) Section IV looks at the FTC's proposal to abolish the five-year reregistration requirement and reexamines the constitutional analysis of the do-not-call registry in light of Congress's decision to let numbers permanently remain. This Note concludes by explaining that if the FTC fails to offer more information justifying its decision to remove the reregistration requirement, the do-not-call registry should not pass another constitutional challenge. II. THE BEGINNING OF THE NATIONAL Do-NOT-CALL REGISTRY A. …