Mainstream Marketing Services, Inc. v. Federal Trade Commission, No. 03-1429 (Fed. 10th Cir. 2/18/2004), No. 03-1429.

• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)
• Writing for the Court: Ebel
• Parties: MAINSTREAM MARKETING SERVICES, INC., a Colorado corporation; TMG MARKETING, INC., a Colorado corporation; AMERICAN TELESERVICES ASSOCIATION, Plaintiffs-Appellees v. FEDERAL TRADE COMMISSION, Defendant-Appellant and TIMOTHY J. MURIS, Chairman of the Federal Trade Commission; SHEILA F. ANTHONY, Commissioner, Federal Trade Commission; MOZELLE W. THOMPSON, Commissioner, Federal Trade Commission; ORSON SWINDLE, Commissioner, Federal Trade Commission; THOMAS B. LEARY, Commissioner, Federal Trade Commission; J. HOWARD BEALES, III, Director, Bureau of Consumer Protection, in their official capacities, Defendants. UNITED STATES OF AMERICA, Intervenor ALABAMA, ALASKA, ARIZONA, ARKANSAS, CALIFORNIA, COLORADO, CONNECTICUT, DELAWARE, DISTRICT OF COLUMBIA, FLORIDA, GEORGIA, HAWAII, IDAHO, ILLINOIS, IOWA, KANSAS, KENTUCKY, LOUISIANA, MAINE, MARYLAND, MASSACHUSETTS, MICHIGAN, MINNESOTA, MISSISSIPPI, MISSOURI, MONTANA, NEVADA, NEW HAMPSHIRE, NEW JERSEY, NEW MEXICO, NEW YORK, NORTH CAROLINA, OHIO, OKLAHOMA, OREGON, PENNSYLVANIA, PUERTO RICO, RHODE ISLAND, SOUTH CAROLINA, SOUTH DAKOTA, TENNESSEE, TEXAS, UTAH, VERMONT, VIRGINIA, WASHINGTON, WEST VIRGINIA AND WYOMING; AARP; W.J. "BILLY" TAUZI, JOHN D. DINGELL, and certain other members of the House of Representatives of the United States; ACA INTERNATIONAL; UNDERSIGNED MEMBERS OF THE UNITED STATES SENATE COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION; THE COUNCIL OF AMERICAN SURVEY RESEARCH ORGANIZATIONS, THE AMERICAN ASSOCIATION FOR PUBLIC OPINION RESEARCH, THE COUNCIL FOR MARKETING AND OPINION RESEARCH, Amici Curiae. U.S. SECURITY, an Oklahoma corporation; CHARTERED BENEFIT SERVICES, INC., an Illinois corporation, GLOBAL CONTACT SERVICES, INC., a Delaware corporation; INFOCISION MANAGEMENT CORPORATION, a Delaware corporation; DIRECT MARKETING ASSOCIATION, INC., a New York non-profit association, Plaintiffs-Appellees v. FEDERAL TRADE COMMISSION, Defendant-Appellant. ALABAMA, ALASKA, ARIZONA, ARKANSAS, CALIFORNIA, COLORADO, CONNECTICUT, DELAWARE, DISTRICT OF COLUMBIA, FLORIDA, GEORGIA, HAWAII, IDAHO, ILLINOIS, IOWA, KANSAS, KENTUCKY, LOUISIANA, MAINE, MARYLAND, MASSACHUSETTS, MICHIGAN, MINNESOTA, MISSISSIPPI, MISSOURI, MONTANA, NEVADA, NEW HAMPSHIRE, NEW JERSEY, NEW MEXICO, NEW YORK, NORTH CAROLINA, OHIO, OKLAHOMA, OREGON, PENNSYLVANIA, PUERTO RICO, RHODE ISLAND, SOUTH CAROLINA, SOUTH DAKOTA, TENNESSEE, TEXAS, UTAH, VERMONT, VIRGINIA, WASHINGTON, WEST VIRGINIA AND WYOMING; ACA INTERNATIONAL; THE COUNCIL OF AMERICAN SURVEY RESEARCH ORGANIZATIONS, THE AMERICAN ASSOCIATION FOR PUBLIC OPINION RESEARCH, THE COUNCIL FOR MARKETING AND OPINION RESEARCH, Amici Curiae. MAINSTEAM MARKETING SERVICES, INC., a Colorado corporation; TMG MARKETING, INC., a Colorado corporation; AMERICAN TELESERVICES ASSOCIATION, Petitioners v. FEDERAL COMMUNICATIONS COMMISSION; UNITED STATES OF AMERICA, Respondents. ALABAMA, ALASKA, ARIZONA, ARKANSAS, CALIFORNIA, COLORADO, CONNECTICUT, DELAWARE, DISTRICT OF COLUMBIA, FLORIDA, GEORGIA, HAWAII, IDAHO, ILLINOIS, IOWA, KANSAS, KENTUCKY, LOUISIANA, MAINE, MARYLAND, MASSACHUSETTS, MICHIGAN, MINNESOTA, MISSISSIPPI, MISSOURI, MONTANA, NEVADA, NEW HAMPSHIRE, NEW JERSEY, NEW MEXICO, NEW YORK, NORTH CAROLINA, OHIO, OKLAHOMA, OREGON, PENNSYLVANIA, PUERTO RICO, RHODE ISLAND, SOUTH CAROLINA, SOUTH DAKOTA, TENNESSEE, TEXAS, UTAH, VERMONT, VIRGINIA, WASHINGTON, WEST VIRGINIA AND WYOMING; ACA INTERNATIONAL; THE COUNCIL OF AMERICAN SURVEY RESEARCH ORGANIZATIONS, THE AMERICAN ASSOCIATION FOR PUBLIC OPINION RESEARCH, THE COUNCIL FOR MARKETING AND OPINION RESEARCH, Amici Curiae. COMPETITIVE TELECOMMUNICATIONS ASSOCIATION Petitioner v. FEDERAL COMMUNICATIONS COMMISSION; UNITED STATES OF AMERICA, Respondents. THE COUNCIL OF AMERICAN SURVEY RESEARCH ORGANIZATIONS, THE AMERICAN ASSOCIATION FOR PUBLIC OPINION RESEARCH, THE COUNCIL FOR MARKETING AND OPINION RESEARCH, Amici Curiae.
• Docket Number: No. 03-6258.,No. 03-9594.,No. 03-1429.,No. 03-9571.
• Decision Date: 18 February 2004

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MAINSTREAM MARKETING SERVICES, INC., a Colorado corporation; TMG MARKETING, INC., a Colorado corporation; AMERICAN TELESERVICES ASSOCIATION, Plaintiffs-Appellees
v.
FEDERAL TRADE COMMISSION, Defendant-Appellant and
TIMOTHY J. MURIS, Chairman of the Federal Trade Commission; SHEILA F. ANTHONY, Commissioner, Federal Trade Commission; MOZELLE W. THOMPSON, Commissioner, Federal Trade Commission; ORSON SWINDLE, Commissioner, Federal Trade Commission; THOMAS B. LEARY, Commissioner, Federal Trade Commission; J. HOWARD BEALES, III, Director, Bureau of Consumer Protection, in their official capacities, Defendants.
UNITED STATES OF AMERICA, Intervenor
ALABAMA, ALASKA, ARIZONA, ARKANSAS, CALIFORNIA, COLORADO, CONNECTICUT, DELAWARE, DISTRICT OF COLUMBIA, FLORIDA, GEORGIA, HAWAII, IDAHO, ILLINOIS, IOWA, KANSAS, KENTUCKY, LOUISIANA, MAINE, MARYLAND, MASSACHUSETTS, MICHIGAN, MINNESOTA, MISSISSIPPI, MISSOURI, MONTANA, NEVADA, NEW HAMPSHIRE, NEW JERSEY, NEW MEXICO, NEW YORK, NORTH CAROLINA, OHIO, OKLAHOMA, OREGON, PENNSYLVANIA, PUERTO RICO, RHODE ISLAND, SOUTH CAROLINA, SOUTH DAKOTA, TENNESSEE, TEXAS, UTAH, VERMONT, VIRGINIA, WASHINGTON, WEST VIRGINIA AND WYOMING; AARP; W.J. "BILLY" TAUZI, JOHN D. DINGELL, and certain other members of the House of Representatives of the United States; ACA INTERNATIONAL; UNDERSIGNED MEMBERS OF THE UNITED STATES SENATE COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION; THE COUNCIL OF AMERICAN SURVEY RESEARCH ORGANIZATIONS, THE AMERICAN ASSOCIATION FOR PUBLIC OPINION RESEARCH, THE COUNCIL FOR MARKETING AND OPINION RESEARCH, Amici Curiae.
U.S. SECURITY, an Oklahoma corporation; CHARTERED BENEFIT SERVICES, INC., an Illinois corporation, GLOBAL CONTACT SERVICES, INC., a Delaware corporation; INFOCISION MANAGEMENT CORPORATION, a Delaware corporation; DIRECT MARKETING ASSOCIATION, INC., a New York non-profit association, Plaintiffs-Appellees
v.
FEDERAL TRADE COMMISSION, Defendant-Appellant.
ALABAMA, ALASKA, ARIZONA, ARKANSAS, CALIFORNIA, COLORADO, CONNECTICUT, DELAWARE, DISTRICT OF COLUMBIA, FLORIDA, GEORGIA, HAWAII, IDAHO, ILLINOIS, IOWA, KANSAS, KENTUCKY, LOUISIANA, MAINE, MARYLAND, MASSACHUSETTS, MICHIGAN, MINNESOTA, MISSISSIPPI, MISSOURI, MONTANA, NEVADA, NEW HAMPSHIRE, NEW JERSEY, NEW MEXICO, NEW YORK, NORTH CAROLINA, OHIO, OKLAHOMA, OREGON, PENNSYLVANIA, PUERTO RICO, RHODE ISLAND, SOUTH CAROLINA, SOUTH DAKOTA, TENNESSEE, TEXAS, UTAH, VERMONT, VIRGINIA, WASHINGTON, WEST VIRGINIA AND WYOMING; ACA INTERNATIONAL; THE COUNCIL OF AMERICAN SURVEY RESEARCH ORGANIZATIONS, THE AMERICAN ASSOCIATION FOR PUBLIC OPINION RESEARCH, THE COUNCIL FOR MARKETING AND OPINION RESEARCH, Amici Curiae.
MAINSTEAM MARKETING SERVICES, INC., a Colorado corporation; TMG MARKETING, INC., a Colorado corporation; AMERICAN TELESERVICES ASSOCIATION, Petitioners
v.
FEDERAL COMMUNICATIONS COMMISSION; UNITED STATES OF AMERICA, Respondents.
ALABAMA, ALASKA, ARIZONA, ARKANSAS, CALIFORNIA, COLORADO, CONNECTICUT, DELAWARE, DISTRICT OF COLUMBIA, FLORIDA, GEORGIA, HAWAII, IDAHO, ILLINOIS, IOWA, KANSAS, KENTUCKY, LOUISIANA, MAINE, MARYLAND, MASSACHUSETTS, MICHIGAN, MINNESOTA, MISSISSIPPI, MISSOURI, MONTANA, NEVADA, NEW HAMPSHIRE, NEW JERSEY, NEW MEXICO, NEW YORK, NORTH CAROLINA, OHIO, OKLAHOMA, OREGON, PENNSYLVANIA, PUERTO RICO, RHODE ISLAND, SOUTH CAROLINA, SOUTH DAKOTA, TENNESSEE, TEXAS, UTAH, VERMONT, VIRGINIA, WASHINGTON, WEST VIRGINIA AND WYOMING; ACA INTERNATIONAL; THE COUNCIL OF AMERICAN SURVEY RESEARCH ORGANIZATIONS, THE AMERICAN ASSOCIATION FOR PUBLIC OPINION RESEARCH, THE COUNCIL FOR MARKETING AND OPINION RESEARCH, Amici Curiae.
COMPETITIVE TELECOMMUNICATIONS ASSOCIATION Petitioner
v.
FEDERAL COMMUNICATIONS COMMISSION; UNITED STATES OF AMERICA, Respondents.
THE COUNCIL OF AMERICAN SURVEY RESEARCH ORGANIZATIONS, THE AMERICAN ASSOCIATION FOR PUBLIC OPINION RESEARCH, THE COUNCIL FOR MARKETING AND OPINION RESEARCH, Amici Curiae. No. 03-1429. No. 03-6258. No. 03-9571. No. 03-9594. United States Court of Appeals, Tenth Circuit. February 18, 2004.

Appeal from the United States District Court for the District of Colorado, (D.C. No. 03-N-184 (MJW)).

Appeal from the United States District Court for the Western District of Oklahoma, (D.C. No. 03-CV-122-W).

Petitions for Review of an Order of the Federal Communications Commission, (FCC No. 03-153).

Peter D. Keisler, Assistant Attorney General, Washington, D.C.; Lawrence DeMille-Wagman, Attorney, Federal Trade Commission, Washington, D.C., for Defendant-Appellant Federal Trade Commission; Jacob M. Lewis, Associate General Counsel, Federal Communications Commission, Washington, D.C., for Respondent Federal Communications Commission; (John A. Rogovin, General Counsel, Susan L. Launer, Deputy Associate General Counsel, Laurence N. Bourne, Rodger D. Citron, Federal Communications Commission, Washington, D.C.; William E. Kovacic, General Counsel, John D. Graubert, Principal Deputy General Counsel; John F. Daly, Deputy General Counsel for Litigation, Federal Trade Commission, Washington, D.C.; John W. Suthers, United States Attorney, Robert G. McCampbell, United States Attorney; Mark B. Stern, Appellate Litigation Counsel; Alisa B. Klein, U.S. Department of Justice, Washington, D.C., Civil Division, with them on the briefs).

Robert Corn-Revere, Davis Wright Tremaine, LLP, Washington, D.C., for Plaintiffs-Appellees and Petitioners Mainstream Marketing Services, Inc., TMG Marketing, Inc., and American Teleservices Association; Thomas F. O'Neill, III, Piper Rudnick, Washington, D.C., for Plaintiffs-Appellees U.S. Security, Chartered Benefit Services, Inc., Global Contract Services, Inc., Infocision Management Corporation, and Direct Marketing Association, Inc. (Ronald G. London, Davis Wright Tremaine, LLP, Washington, D.C.; Sean R. Gallagher, Marianne N. Hallinan, Hogan & Hartson, LLP, Denver, Colorado; Douglas H. Green, John L. Moore, Jr., Emilio W. Cividanes, Piper Rudnick, Washington, D.C.; James Nesland, Jeffrey Smith, Cooley Godward LLP, Broomfield, Colorado, with them on the briefs).

Ian Heath Gershengorn, Jenner & Block, LLC, Washington, D.C., for Petitioner Competitive Telecommunications Association (Jonathan Lee, Vice President, Regulatory Affairs, Competitive Telecommunications Association, with him on the briefs.)

Before SEYMOUR, EBEL and HENRY, Circuit Judges.

EBEL, Circuit Judge.

The four cases consolidated in this appeal involve challenges to the national do-not-call registry, which allows individuals to register their phone numbers on a national "do-not-call list" and prohibits most commercial telemarketers from calling the numbers on that list. The primary issue in this case is whether the First Amendment prevents the government from establishing an opt-in telemarketing regulation that provides a mechanism for consumers to restrict commercial sales calls but does not provide a similar mechanism to limit charitable or political calls.¹ We hold that the do-not-call registry is a valid commercial speech regulation because it directly advances the government's important interests in safeguarding personal privacy and reducing the danger of telemarketing abuse without burdening an excessive amount of speech. In other words, there is a reasonable fit between the do-not-call regulations and the government's reasons for enacting them.

As we discuss below in greater detail, four key aspects of the do-not-call registry convince us that it is consistent with First Amendment requirements. First, the list restricts only core commercial speech i.e., commercial sales calls.² Second, the do-not-call registry targets speech that invades the privacy of the home, a personal sanctuary that enjoys a unique status in our constitutional jurisprudence. See Frisby v. Schultz, 487 U.S. 474, 484 (1988). Third, the do-not-call registry is an opt-in program that puts the choice of whether or not to restrict commercial calls entirely in the hands of consumers. Fourth, the do-not-call registry materially furthers the government's interests in combating the danger of abusive telemarketing and preventing the invasion of consumer privacy, blocking a significant number of the calls that cause these problems. Under these circumstances, we conclude that the requirements of the First Amendment are satisfied.

A number of additional features of the national do-not-call registry, although not dispositive, further demonstrate that the list is consistent with the First Amendment rights of commercial speakers. The challenged regulations do not hinder any business' ability to contact consumers by other means, such as through direct mailings or other forms of advertising. Moreover, they give consumers a number of different options to avoid calls they do not want to receive. Namely, consumers who wish to restrict some but not all commercial sales calls can do so by using company-specific do-not-call lists or by granting some businesses express permission to call.³ In addition, the government chose to offer consumers broader options to restrict commercial sales calls than charitable and political calls after finding that commercial calls were more intrusive and posed a greater danger of consumer abuse. The government also had evidence that the less restrictive company-specific do-not-call list did not solve the problems caused by commercial telemarketing, but it had no comparable evidence with respect to charitable and political fundraising.

The national do-not-call registry offers consumers a tool with which they can protect their homes against intrusions that Congress has determined to be particularly invasive. Just as a consumer can avoid door-to-door peddlers by placing a "No Solicitation" sign in his or her front yard, the do-not-call registry lets consumers avoid unwanted sales pitches that invade the home via telephone, if they choose to do so. We are convinced that the First Amendment does not prevent the government from giving consumers this option.

I. BACKGROUND

In 2003, two federal...