Big Win for FTC on Do-Not-Call

The 10th Circuit decision in FTC v. Mainstream Marketing Serv is a huge win for the FTC. The court not only vacated the injunction blocking implementation of the do-not-call list, but said that it thinks the FTC is very likely to win on the merits.

The key to the panel's decision is that it finds in the agency's deliberative records, and in the original statute's legislative history, reasons why one could believe that commercial calls are (a) more annoying to consumers than non-commercial calls and (b) why the risk of fraud and other harms is greater from commercial calls than from non-commercial calls:

  • Consumers find non-commercial calls less intrusive. [huh?-ed] And there are fewer of them.
  • Non-commercial callers are less likely to commit financial fraud because often they want to talk you into something not sell you something, and also because they want you to love them, so they won't tend to do things that make you mad. [This probably meets the plausibility test, even if I'm not sure I buy it personally.]
  • The FTC had reason to believe that company-specific lists didn't work to stop commercial telemarketers, but had no evidence about the effectiveness of such lists for non-commercial callers. It was thus reasonable for the FTC to proceed to solve the part of the problem it understood best: just because “the FTC did not yet have a record as to the need to include charitable callers on a national do-not-call list does not mean that it could not at least address the problem as to which it did have an adequate record–that the more limited company-specific do-not-call list was ineffective to prevent invasions of privacy and abusive practices among commercial solicitors. United States v. Edge Broad. Co., 509 U.S. at 434 (noting the government is not required 'to make progress on every front before it can make progress on any front')”).”

This is not the world's most overwhelmingly persuasive reasoning, but it's good enough to be getting on with: it supplies the reasons needed to overcome the First Amdment presumptions against non-viewpoint-based content discrimination (see my earlier discussion and followup).

Bottom line: Look forward to a more peaceful dinnertime. Except during election season.

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