Courts Uphold Do Not Call Rule

The U.S. Tenth Circuit Court of Appeals unanimously upheld the constitutionality of the Do Not Call rule. The court rejected plaintiffs’ argument that the Federal Trade Commission's Do Not Call rule violates the First Amendment by treating charitable and political calls differently than commercial sales calls. The ruling, issued on February 17, 2004, leaves unchanged the Do Not Call restrictions and registry for for-profit telemarketers and the exemption for solicitations by charities. Mainstream Marketing Services, Inc. v. FTC

In a separate case, Fourth Circuit Court of Appeals held that professional telemarketers must follow certain Do Not Call restrictions, even when calling on behalf of charities.  The restrictions pertain to caller identification, company specific do-not-call provisions, abandoned calls, and prohibitions on calls during certain times of day. National Federation of the Blind v. FTC

Background
Enforcement of the Federal Trade Commission's "Do Not Call" Registry was temporarily delayed by court challenges.  An appeals court ruling on October 7, 2003 ultimately allowed enforcement of the rule to proceed while a challenge to the rule's constitutionality continued. 

The "Do Not Call" rules do not apply to nonprofits making calls on their own behalf using their own employees or volunteers, but they do apply to for-profit firms working on behalf of nonprofit organizations. Such firms do not have to search the national registry before placing calls for nonprofits, however, they must honor requests not to call again. The rules also impose new specific requirements on for-profit firms conducting solicitations for nonprofits, including:

• Telephone solicitors must disclose “truthfully, promptly, and in a clear and conspicuous manner” to the person receiving the call the identity of the charitable organization on behalf of which the request is being made and that the purpose of the call is to solicit a charitable contribution.
• Telephone solicitors are prohibited from misrepresenting, directly or by implication: a) the nature, purpose, or mission of any entity on behalf of which a charitable contribution is being requested; b) that any charitable contribution is tax-deductible in whole or in part; c) the purpose for which any charitable contribution will be used; d) the percentage or amount of any charitable contribution that will go to a charitable organization or program; e) any material aspect of a prize promotion (e.g., the odds of receiving a prize, the nature or value of a prize, or that a charitable contribution is required to win a prize); or f) a charitable organization’s or telemarketer’s affiliation with, or endorsement or sponsorship by, any person or government entity.
• Telephone solicitors may not make calls to any individual (or household) who has stated that he or she does not wish to receive calls made by or on behalf of the charitable organization for which a contribution is being solicited.
   

Last updated: May 28, 2008