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Dreher Tomkies LLP
Attorneys at Law
2750 Huntington Center
41 South High Street
Columbus, Ohio 43215
Telephone (614) 628-8000
Fax (614) 628-1600

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On February 17, 2004, the United States Court of Appeals for the Tenth Circuit found the challenges by telemarketers to the Federal Trade Commission's national do-not-call registry to be without merit and upheld the registry in its entirety. Mainstream Marketing Servs., Inc. v. FTC, No. 03-1429. (10th Cir. Feb. 17, 2004). The national do-not-call registry generally allows individuals to register their telephone numbers on a national list and prohibits most commercial telemarketers from calling numbers on the list. According to the court, the registry does not violate telemarketers' commercial free speech rights under the First Amendment because (i) privacy and consumer protection are substantial interests served by the registry, (ii) the registry directly advances those interests by banning a substantial amount of unwanted telemarketing calls and (iii) the regulation enacting the registry is narrowly tailored because its opt-in feature ensures that it does not restrict any speech directed at a willing listener. The court rejected other challenges to the registry as well, namely that (i) the fees charged telemarketers to access the registry are unconstitutional revenue taxes on protected speech, (ii) the "established business relationship" exception to the do-not-call prohibition is arbitrary and capricious in violation of the Administrative Procedure Act and (iii) the FTC lacked the statutory authority to enact the registry.

Margaret Stolar and Chuck Gall


The FTC is seeking comment on an amendment to the Telemarketing Sales Rule (TSR) to require sellers and telemarketers, in complying with the its do-not-call prohibitions, to use a version of the national do-not-call registry obtained from the FTC no more than 30 days prior to the date any call is made. See 69 Fed. Reg. 7330-01 (Feb. 13, 2004). The TSR currently provides that a version of the registry that is no more than three months old must be used. The FTC also is seeking comment on the amount of time it will take sellers and telemarketers to modify their business procedures and systems to comply with this amendment so that an appropriate effective date may be established. Comments are due by February 26, 2004.

Margaret Stolar and Chuck Gall