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Litigation News

Spring 2024 Vol. 49, No. 3

“Wrong Number!” Can You Control Who Calls Your Telephone?

John McNichols


  • A mild nuisance at first, telemarketing became a national concern once automatic dialing technology emerged.
  • Telemarketing calls had become so prevalent and ubiquitous by 1991 that the federal government got involved.
  • They restricted and even prohibited certain forms of electronic communication, steps that ultimately led to the federal Do Not Call Registry.
“Wrong Number!” Can You Control Who Calls Your Telephone?
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Whose of us who grew up in the last century may recall the time when telemarketers began to replace teenagers as the most likely cause of telephonic interruptions during the family dinner hour. A mild nuisance at first, telemarketing became a national concern once automatic dialing technology emerged in the 1980s, exponentially increasing the volume of calls that households received. Telemarketing calls had become so prevalent and ubiquitous by 1991 that the federal government got involved, restricting and even prohibiting certain forms of electronic communication, steps that ultimately led to the federal Do Not Call Registry and various state-level analogues.

Nevertheless, despite widespread agreement about the unwelcome nature of telemarketing, the road to the national Do Not Call list was a long and winding one, and numerous loopholes remain. Telemarketing companies have pushed back hard, challenging the authority of federal regulators and vigorously asserting the First Amendment protections afforded to commercial speech. Nonprofit telemarketers have been similarly vigilant and are subject to fewer restrictions than their for-profit counterparts. As a result, telemarketing remains as common today as it was 30 years ago when the first anti-telemarketing laws were passed, notwithstanding the rise of the internet as an alternative mode of electronic outreach.

What Is Telemarketing?

As its name suggests, “telemarketing” refers to retailer-initiated, direct-to-consumer marketing using the telephone. Sometimes, telemarketers call consumers based on previous expressions of interest. But telemarketing’s most infamous incarnation is the “cold call,” an unsolicited inquiry in which the caller has no preexisting reason to think that the consumer may be interested in the caller’s product or service.

Although the idea of reaching consumers by telephone has been around as long as the telephone itself, the utility of telemarketing was long limited by technological factors, in particular the relatively low number of American households with dedicated lines. That changed gradually but profoundly between 1960 and 1980, as individual lines replaced party lines and automated switchboards replaced manual ones, eliminating the need for human operators and enabling faster connections.

But the real breakthrough in telemarketing technology was the advent of “robodialers,” automated number-dialing systems, which, when paired with pre-recorded messages, removed many of the limitations inherent in human callers and greatly expanded the telephone’s potential as a means of outreach. As telemarketing grew, it enabled businesses to reach consumers who had previously been out of reach, such as the elderly or disabled. The potential for abuse in such situations is obvious, and the industry unsurprisingly became notorious for the deployment of high-pressure sales tactics against impressionable persons. Examples of such tactics abound in media, such as those displayed by Leonardo DiCaprio in his portrayal of broker Jordan Belfort in The Wolf of Wall Street.

How Did We Get the “Do Not Call” List?

In response to complaints about the bothersome nature of telemarketing and its frequent association with scams, Congress took up the issue in 1991 through the Telephone Consumer Protection Act, which targeted high-tech telemarketing by restricting telephone solicitations using automatic dialers, pre-recorded voices, or facsimile messages. Surprisingly, perhaps, automated calls to cellular numbers were among those prohibited, even though the cell phone industry was then in its infancy. Except for calls to healthcare facilities or nursing homes, the law did not affect telemarketing calls to business lines. And although the act did not prohibit ordinary human-initiated marketing calls of any type, it left open the possibility of further restrictions by giving the Federal Communications Commission (FCC) authority to create additional rules.

A few years later, the FCC promulgated the first federal regulations governing telemarketing. Despite congressional authorization to establish “a single national database” of customers not to be called, the FCC declined to go that far, instead requiring callers to maintain their own lists of customers who asked not to be contacted (and, by implication, requiring consumers to keep track of the telemarketers to whom they had made no-contact requests).

This approach proved unworkable, however, and in 2003, a different federal agency, the Federal Trade Commission (FTC), created the National Do Not Call Registry, which allowed consumers to make a one-time, once-and-for-all request not to be contacted, and penalized companies that called anyone on the list. Notably, because the FTC’s purview is limited to for-profit enterprises, the Do Not Call Registry was specific to commercial telemarketers, meaning that nonprofit solicitors, such as charities and political parties, could call whomever they wanted, provided they stayed clear of the statutory prohibitions on robodialers and recordings.

How Have Telemarketers Responded?

The Do Not Call Registry was hardly a death knell for the telemarketing industry, which brought multiple lawsuits against the FTC, some of which were successful in the short term. Among other things, telemarketers noted the oddity of having a new regulatory agency step into the breach, asserting that Congress had vested authority to create the registry in the FCC only, and that the FTC’s actions thus were unauthorized. But the industry’s victory on this score was short-lived, as the FCC soon promulgated its own regulations enforcing the Do Not Call Registry, and Congress dispelled any question of the agencies’ authority through the Do-Not-Call Implementation Act of 2003.

Somewhat more successful—and certainly more interesting—were the industry’s free speech challenges. Noting that commercial speech is subject to First Amendment protections, telemarketers argued that any legitimate governmental interest in creating the Do Not Call Registry—such as protecting consumers from annoyance—was undercut by the fact that it applied only to for-profit callers, leaving nonprofits free to do as they wished. Although the argument gained traction at the district court level, the Tenth Circuit rejected it, holding that the registry did not need to prohibit all telemarketing calls to pass constitutional muster.

Subsequent challenges have tried to riff on this point. In one case, charities that outsourced their telemarketing to for-profit fundraisers argued that that their fundraisers should be free from regulation to the same extent as the charities themselves, but the Fourth Circuit rejected that argument, holding that the Do Not Call Registry did not unduly limit charities’ ability to solicit and instead struck an appropriate balance between free speech and privacy interests.

What Is the Current State of Play?

The Do Not Call Registry and its enabling legislation are not the only obstacles that telemarketers face. Since the advent of the registry, caller-identification technology has become a common feature of most telephone extensions, such that consumers can now screen unwanted calls without the assistance of the registry—and, indeed, they can even avoid taking calls that are not subject to Do Not Call restrictions in the first place.

But as with the aforementioned legal restrictions, telemarketers did not back down from the challenge and instead adapted through technological innovation of their own. In particular, many telemarketers adopted “spoofing” technology designed to fool caller ID and thereby disguise the origins of incoming calls. Predictably, telemarketers’ success in this regard prompted yet another response from Congress, which in 2009 passed the Truth in Caller ID Act, making it illegal to transmit phony call-origination information as part of a scheme to defraud or harm consumers.

Presently, despite multiple attempts by both Congress and federal regulators, neither legal nor technological barriers have managed to make telemarketing ineffective as a method of consumer outreach. Until that happens, despite consumers’ general animosity toward uninvited calls, consumers can expect to continue to receive some quantum of telemarketing calls, simply because it still pays to make them.