Leave me alone! The delicate balance of privacy and commercial speech in the evolving do-not-call registry.

Further, as illustrated by its name, the do-not-call list restricts only one avenue by which solicitors and registered consumers can communicate. Businesses can still solicit customers through advertising on roadside billboards, through the U.S. Postal Service, television, radio, door-to-door, or any medium other than the telephone. Also, consumers on the registry are free to permit calls from any business with whom they want to communicate. (95) Alternatively, consumers who choose not to register can make company specific do-not-call requests with businesses from whom they do not want to receive calls. (96) Thus, the personalization options enhance the narrow tailoring of the do-not-call list.

The telemarketers offered two less restrictive and (what they considered) equally effective alternatives: (1) continued use of the company-specific lists, and (2) consumer reliance on technological alternatives like caller ID, call rejection services, and electronic devices designed to block unwanted calls. (97) The court quickly dismissed the latter argument because it put the cost of avoiding unwanted telemarketing calls on consumers. (98) The court also offered a number of reasons why the company-specific lists were inadequate. The company-specific rules were "extremely burdensome to consumers," because they had to repeat their requests to each individual solicitor. (99) Also, after making a company-specific request, consumers had no way to ensure that their numbers had been removed from the calling list. (100) In fact, consumers' requests to be placed on company-specific lists were often ignored by solicitors. (101) The company-specific rules were also difficult to enforce because consumers were forced to bear the burden of keeping detailed lists of which telemarketers had contacted them, and on which company-specific lists they had chosen to be placed. (102)

After analyzing these two points, the court explained that "[n]o calls are restricted unless the recipient has affirmatively declared that he or she does not wish to receive them." (103) In October 2007, the FTC vowed to let registration become permanent, thus leaving numbers on the list regardless of whether or not they had been re-registered in the last five years. This decision leaves us to answer the question, is the court's conclusion that no calls are restricted unless the recipient has explicitly confirmed that he or she does not wish to receive them still true when numbers remain on the list permanently after originally being registered?

IV. THE 2008 AMENDMENT TO THE DO-NOT-CALL REGISTRY

A. The Do-Not-Call Registry and Its Subsequent Amendment

When the national do-not-call registry was first introduced in 2003, the FTC recognized that sixteen percent of all telephone numbers change each year, and twenty percent of Americans move each year. (104) Thus, the FTC concluded that it would be necessary to implement two measures to counteract the potential problem that the registry would, over time, include numbers that had been reassigned even though the new subscribers might not object to receiving telemarketing sales calls. (105) First, the FTC would periodically check all numbers in the registry against national databases and remove from the registry any numbers that had been disconnected or reassigned. Second, the FTC would require those who wished to remain on the registry to re-register their numbers every five years. This second requirement would ensure that the registered citizens still have the same phone number and that they continue to prefer not to be contacted by commercial telemarketers. (106)

In October 2007, the FTC proposed to amend the TSR to remove the re-registration requirement. Less than four months later, the President signed the Do-Not-Call Improvement Act of 2007, (107) which eliminated the automatic removal of telephone numbers registered on the national do-not-call registry. The FTC will continue to periodically check the numbers against a database that lists all numbers that have been disconnected or reassigned. However, they will only remove numbers from the list that have been both disconnected and reassigned, letting numbers that have simply been disconnected remain on the list. (108)

In the amendment's early stages, neither the FCC nor the FTC offered much information in its support. Unfortunately, Congress passed the amendment despite this lack of information. If sufficient information does not surface shoring up any doubts or questions, the battle over the constitutionality of the registry's commercial speech regulations may be much tougher than both commissions expect.

B. Constitutional Analysis of the 2008 Amendment

The analysis of the first three prongs of the Central Hudson test will remain unchanged and not likely be at issue when reconsidering the analysis under the new law. The dispute will turn on the fourth prong: whether the regulation is more extensive than necessary to serve the asserted governmental interest. Restricting only calls directed at consumers who have stated a preference to avoid them seems to be the quintessential definition of narrow tailoring. The decision in Mainstream Marketing operates under the broad assumption that "[n]o calls are restricted unless the recipient has affirmatively declared that he or she does not wish to receive them." (109) While this may have been a fair assumption at the time, without keeping the database up to date by requiring users to re-register every five years it seems that this assumption is no longer a foregone conclusion.

When reanalyzing the constitutionality of the do-not-call registry, the same two rights remain at the forefront of the discussion: the First Amendment protection of commercial speech and an individual's personal right to privacy within his or her own home. Before the change, it was not difficult to determine that the registry was narrowly tailored. It would ensure that people who did not want to participate in the registry would continue to receive telemarketing phone calls by removing numbers that: (1) had failed to re-register in the last five years, (2) been disconnected, or (3) been reassigned. After the proposed change, only numbers that had been both disconnected and reassigned would be removed. The registry essentially went from having three mechanisms ensuring that the list was current and up to date to having only one. It would be quite surprising to see a court conclude that this change does not affect the narrow tailoring that the Constitution requires.

If numbers belonging to consumers who wish to remain off of the list are not removed from the list, the inclusion of unwilling participants will continue to grow. If people who wish to hear the commercial speech offered by the telemarketers are denied this right, the list effectively turns into a complete ban on commercial speech, which, according to Central Hudson, would be unconstitutional. As explained in Central Hudson, restrictions on commercial speech require that the same governmental goals could not be achieved with a less restrictive measure. (110) The registry has proven successful by using a less restrictive alternative, namely requiring members to re-register their numbers every five years. Thus, it would be very difficult to argue that the government's goals could not be equally achieved with a less restrictive alternative.

Additionally, it is important to compare the downside of the amendment to the downside of leaving the regulation in its pre-amendment status. In passing the amendment, Congress is completely relying on the accuracy of the Commission's process of purging numbers. In the case of an error, we face the possibility of withholding constitutionally protected commercial speech from countless willing listeners. These people would be denied their right to hear commercial speech without any say or even knowledge of what they are being deprived of. An individual whose number had inadvertently been left on the registry would be in the dark as to why he was never receiving any telephone sales offers, and therefore would not know how to remedy the problem. On the other hand, with the five-year re-registration requirement intact, the potential downside is merely that an individual will forget to re-register, and will be bothered by an unsolicited commercial sales call. He will be reminded to re-register when he receives a call that he was not anticipating and does not want. Given the simple registration process, he can quickly and easily be back on the list for another five years. In addition to troubling only one consumer at a time, each consumer is aware of the situation, knowing both that they forgot to re-register, and the process to follow in order to get his or her name back on the list. A simple balance shows that denying a potential mass of innocent people the opportunity to hear constitutionally protected speech in one fell swoop is far greater than the possibility that one individual consumer will be inconvenienced by a telemarketer, reminding him or her to re-register on the do-not-call list.

In the event of a mistake in purging obsolete numbers, the five-year re-registry serves as a tool limiting the number of unknowing, innocent victims who may be denied their right to hear commercial speech. Despite the popularity of the registry, it is important to remember that not everybody wishes to avoid calls from telemarketers. (111) With the reregistration requirement in place, if a number that has been reassigned accidentally remains on the list, telemarketers would only be prohibited from contacting that individual for a maximum of five years. Assuming the individual chose not to register, the number would automatically be removed from the list within five years, and the consumer would be free to receive the calls.

In the limited information offered to support the decision, the FTC listed four changes that have taken place since the registry was first established in 2003, only one of which is somewhat convincing. (112) First, the FTC notes the increase in cell phone usage and popularity of number portability. Second, both the Third and Tenth Circuit courts held that the list was constitutional. Third, it is argued that the list has been implemented successfully for five years and the process of removing disconnected or reassigned numbers has been equally successful. The fourth reason offered by the FTC is the unprecedented popularity of the registry. Moreover, the FCC has concluded that the "enhanced consumer privacy protections created by this proposed rule amendment, taken in conjunction with the benefits to the federal government in administering the national registry, outweigh any potential impact." (113)

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