Mainstream Marketing Services, Inc. vs FTC

Mainstream Marketing Services, Inc. vs. FTC, 284 F. Supp. 2d 1266 (D. Colo. 2003)

[ Case text here ]


Mainstream Marketing Services, Inc. v. FTC ('MMS', Or Mainstream Marketing) was decided in the Tenth Circuit U.S. Appeals Court on September 25th 2003.

This case is along the lines of the other 2 relevant cases Rowan vs Post Office Dept and Martin vs City of Struthers in that its plaintiffs sought to challenge the constitutionality of the 'Do-Not-Cal-Registry' ("DNCR") as implemented by the FTC. (here)

The 'Do-Not-Cal-Registry' was established in 2003 by the FTC as an OPT-IN program where citizens could enter their phone number(s) to indicated that they did not want to receive telemarketing calls. The basic assumption is that citizens do welcome these calls and therefor have to take an affirmative action (By listing ones phone number in the 'Do-Not-Cal-Registry' list) to no longer receive them.

The national 'Do-Not-Cal-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 soliciting" sign in his or her front yard, the 'Do-Not-Cal-Registry' lets consumers avoid unwanted sales pitches that invade the home via telephone.

In this case, two telemarketing firms (Mainstream Marketing Services, Inc. TMG Marketing, Inc.) and a trade group (American Teleservices Association) challenged whether the FTC crafted the DNCR narrowly enough to adequately protect corporate telemarketers’ “commercial speech” and whether the FTC’s failure to include non-commercial charitable organizations in the DNCR amounted to an unconstitutional “content-based” restriction on speech. (Note: The term ‘commercial speech” describes speech used primarily by corporations to disseminate information about goods and services).


The Tenth Circuit panel had no trouble finding that the FTC has a legitimate and substantial interest in protecting citizens’ privacy, or the right to be left alone in their own homes. The Court ruled that the government’s interest in protecting in-home privacy is sufficient to justify a restriction on speech.

The case

The Court unanimously held that the 'Do Not Call Registry' is a valid commercial speech regulation because it directly advances the government's important interests in protecting personal privacy and reducing the danger of telemarketing abuse without burdening an excessive amount of speech.

The Court based it's decision on the so called 'Central Hudson test' (developed in another Supreme Court Case as a ways to test if speech is restrictive, here)

The Court held that

  1. The 'Do Not Call Registry' restricts only core commercial speech (i.e., commercial sales calls.)
  2. The 'Do Not Call Registry' targets speech that invades the privacy of the home, a personal sanctuary that enjoys a unique status in constitutional jurisprudence.
  3. 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.
  4. 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.

The Court also pointed out that the challenged regulations do not hinder any business' ability to contact consumers by other means, such as through direct mailing or other forms of advertising.

In essence, they give consumers a number of different options to avoid calls they do not want to receive!

On more note on of particular interest is that plaintiffs had argued that a consumer should be able to decide per solicitor whether to receive calls, and not via a categorically 'one-size-fits-all' approach. The Court was convinced that the previous company specific opt-out approach, where consumers wishing to be left undisturbed by telemarketers' need to repeat their do-not-call requests to every solicitor who called, was seriously inadequate to protect consumers' privacy from an abusive pattern of calls placed by a telemarketer and proved to be extremely burdensome to consumers.

In effect, the court was saying that it would be too burdensome for someone to state a do-not-call request per solicitor and in that vein we believe that it is the power of this 'categorically' which empowers addressees to fully reject any and all mail sent via a specific mailing class, and not in a per mailer type fashion via the 'pandering advertisement' provision currently in place.