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Weekly Updates1. Changes in the Marketplace
In its statement that cell phone usage has risen and number portability has become increasingly popular, the FTC neglects two important facts. Many individuals have both wireless lines and wirelines. Moreover, in the event of a move, regardless of an individual's desire to take his or her telephone number along, the number is only portable if it remains in the same area code.
When the do-not-call registry was created in 2003, the FCC estimated that there were 118.1 million wireline residential telephone lines. (114) While there has been some decrease in the number of wirelines, there were still 107.8 million wireline residential phone lines in 2005. (115) Further, it is difficult to see how this decrease in wirelines justifies precluding telephone calls to consumers who potentially still want to continue to receive the calls. Even if the number of wireline residential telephone lines were to be cut in half, it would not reduce the need to protect an individual's right to receive telemarketing calls if he or she so chooses. This can only be done by ensuring that the registry contains only numbers that belong to consumers who have affirmatively indicated a preference to take part in the registry.
Of equal importance is the fact that regardless of the apparent popularity of number portability, as far as the do-not-call registry is concerned, a number is only portable as long as it remains within the same area code. The most recent report of geographic mobility of Americans considers the number of Americans who moved from 2002 to 2003. The report shows that 14.2% of Americans moved in that year; nearly half of those moves were outside of their previous county. (116) Of the movers who decided to leave their county, only half decided to remain within their state, while the rest left their state. (117) While some counties in rural areas share the same area code, counties in more urban areas often have multiple area codes. (118) The result of these moves was that people who chose to move out of their county would almost certainly not be able to retain their telephone numbers, and even some of those who remained in the same county would also be forced to change numbers due to different area codes. Assuming that every single person who moved within the same area code wanted to keep his or her telephone number, it would still be highly unlikely that any less than seven to eight percent of Americans per year would be forced to change their phone number due to a move.
2. Legal Landscape
Next, the FTC argues that the legal landscape surrounding the do-not-call list has become clearer. (119) In support of this argument, the FTC notes its victories in two challenges to the registry's constitutionality. (120) While this is undoubtedly true, this was only because the registry was deemed "narrowly tailored" to achieve the goals of the government. The narrow tailoring ensured that only those who voiced a preference not to receive commercial telemarketing calls would actually avoid receiving such calls. It would be illogical to conclude that because the registry passed constitutional muster before, it would automatically pass again regardless of any changes made to it.
The FTC correctly explains that the courts deciding the cases paid close attention to the care the FTC put into ensuring that the registry included only numbers of consumers who indicated a preference not to receive the calls. (121) However, the FTC incorrectly claimed that the courts did not address the issue of the five-year re-registration requirement. In fact, in addressing the important features of the registry, the Tenth Circuit explained: "[c]onsumer registrations remain valid for five years, and phone numbers that are disconnected or reassigned will be periodically removed from the registry." (122) Simply because the court did not delve into the reregistration requirement in its conclusion that the registry was narrowly tailored does not mean that the requirement was not even considered in its decision. To the contrary, the fact that the court specifically pointed out that feature of the registry leads one to believe that it was in fact taken into account upon rendering the final decision. In the case of another challenge, the court will likely again focus on the issue of whether the registry includes only numbers of consumers who have indicated a preference not to receive commercial telemarketing calls, however, they may not come to the same conclusion without the re-registration requirement.
3. Success of the Process of Purging Obsolete Numbers
While this argument is the FTC's strongest, the FTC will need to elaborate on it in order to defeat another constitutional challenge to the do-not-call registry. It is unlikely that the other three reasons offered for the change will be enough to show that the change did not seriously undermine the narrow tailoring required by the Constitution. Consequently, this is the argument that will require the most detailed support. Even then, the FTC may have to improve the process of purging obsolete numbers in order to pass rigorous constitutional scrutiny.
The FTC explains that this process of purging numbers is subcontracted to a list broker claiming to have information on every telephone number in North America that is updated ten times daily. (123) The subscriber information, including disconnect and reconnect data, is reportedly acquired from every local exchange cartier in America. (124) Once a month, the broker matches the registry against its list of disconnected and reassigned numbers and removes only those numbers that had been both disconnected and reassigned. (125)
This highlights the questions that the FTC will face. Is the broker's claim that its information includes every number in America verifiable? If so, is it possible to verify that the information is always accurate and up to date? Is it possible to verify that every number that has been reassigned will be properly removed from the registry? Why do numbers have to be both disconnected and reassigned in order to be removed? If the broker's information does in fact contain every number in America, if it is always accurate and up to date, and if any numbers that have been disconnected and reassigned will be removed from the list every month, the question remains as to whether this single measure is enough for the court to conclude that the regulation is still narrowly tailored. Is removing numbers once a month enough? Could the government's interest be served just as effectively with an alternative that restricts speech less? Is the five-year reregistration requirement needed as a safety net to ensure that any mistakes do not last more than five years?
Unfortunately, neither the FTC nor the FCC has offered answers to many of these questions, but the accuracy of the FTC's removal of obsolete numbers is undoubtedly the issue on which any subsequent constitutional challenge will turn. In order to pass rigorous constitutional scrutiny once again, the FTC will need to show that its process of purging numbers is so accurate that requiring members to re-register on the list would be superfluous. The re-registration burden is minimal, requiring a quick visit to a Web site or a call to a 1-800 number requesting registration. Complete reliance on automatic removal of obsolete numbers surely removes this burden from consumers. However, because the burden of re-registering is so minimal, the court will likely find that any inaccuracy could not be outweighed by the reduced burden on consumers.
4. Popularity of the Registry
It is difficult to see how the FTC can conclude that it is justified in foreclosing a willing listener's ability to hear commercial speech simply because a majority of the population chooses not to hear the commercial speech in question. If seventy-five percent of Americans do not want to receive commercial telemarketing calls, that does not diminish the fight of the other twenty-five percent of Americans that do want to hear the constitutionally protected speech. (126) The registry's general popularity among Americans does not give the FTC free reign to revoke the rights of an individual who wants to hear the commercial speech offered by the telemarketers. This is probably the weakest of the FTC's four arguments.
One could find that the registry's popularity actually cuts against the need to amend it. The popularity of the registry illustrates two important points. First, it shows that Americans are aware of its existence. Second, it shows that registration is simple enough for ten million people to sign up in the first three days (127) and fifty million people to sign up within the first year. (128) This, in turn, demonstrates the minimal burden of registration. If fifty million people can sign up in less than a year, it is hard to buy the argument that requiring reregistration every five years is a burden too large to impose on consumers who do not want to receive commercial sales calls.
V. CONCLUSION
After looking at the evolution of the national do-not-call registry, it is apparent that the registry originated as a method to protect an individual's privacy rights within his or her home. It required the individual to sign up for the registry, and to reiterate his or her desire not to be bothered within their home every five years. The recent changes, however, seem to take the registry in the direction of gradually stopping commercial sales calls altogether. The decision to abandon the five-year re-registration requirement raises a number of serious questions regarding the future of the registry.
As Americans, we greatly value our freedoms, particularly the freedom of speech, and the freedom to be let alone. There is no doubt that if an individual does not want to be bothered within his or her home, he or she should be allowed that protection. However, we should not be so forceful in protecting that right that we block another's right to speak, or even hear speech that he or she so chooses. The registry has proven to be extremely popular, probably due in some part to the ease of registration. Considering the popularity, and the ease of registering (and re-registering, for that matter) does it really seem broken? The answer to that question is "no"; therefore, it does not seem that the registry needed to be repaired.
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