Annoying, intrusive, … and constitutional: telemarketing and the national Do‐Not‐Call Registry Available to Purchase

The recent adoption by the US Federal Trade Commission of the national Do‐Not‐Call Registry prohibiting most telemarketers from contacting individuals once their number is added to the listing is a threat to the US domestic telemarketing industry. Analysis of US federal law suggests that the national registry is likely an unconstitutional exercise of administrative power. To be legal, governmental prior restraints on commercial speech must pass the four‐part Central Hudson test adopted by the US Supreme Court. The Do‐Not‐Call Registry fails parts three and four of the test and probably part two as well. There is an insufficient fit between the stated governmental purpose of the regulation and its operation. Moreover, balancing the benefits from the registry against the harm it inflicts further militates against its constitutionality. International and public relations implications are explored and discussed.