February 18, 2005
LEGAL ISSUES REGARDING UNSOLICITED CALLS TO CELL PHONES
By: Kevin E. McCarthy, Principal Analyst
You asked for a discussion of possible legal issues if the state banned unsolicited commercial calls to cell phones.
We are unaware of any state that has adopted such a ban or any case law on your specific question. However, Connecticut and federal law generally bar unsolicited commercial calls to numbers listed in their respective “Do Not Call” registries, including cell phone numbers. Other state and federal laws place other restrictions on unsolicited commercial telecommunications, such as “junk fax” laws. OLR Report 2004-R-0957 provides additional information regarding the existing laws. OLR Report 2003-R-0913 discusses the junk fax laws, which may be pertinent to your question.
We have found no cases on the existing Connecticut laws, but the federal laws have been challenged on a variety of grounds. The primary issue has been whether such laws violate the First Amendment to the U.S. Constitution. The courts have upheld the laws after subjecting them to intermediate scrutiny, i.e., a more rigorous review than applies to laws that do not affect free speech, but a less strict review than applies to laws affecting noncommercial speech.
DO NOT CALL REGISTRIES
Under federal regulations (16 CFR Part 310), telemarketing calls cannot be made to numbers listed in the federal “Do Not Call” registry. A person can list both wireline and cell phone numbers on the registry by calling the Federal Trade Commission at (888)382-1222 from the phone number that is to be listed. Alternatively, he can enroll online at
http: //www. fcc. gov/cgb/donotcall/. The prohibition does not apply to calls from organizations with which a person has established a business relationship, and certain other calls.
Similarly, Connecticut's “Do Not Call” law (CGS Sec. 42-288a) prohibits, with certain exemptions, solicitors from making, or causing to be made, unsolicited sales calls to consumers who have enrolled with the state "No Sales Solicitation Calls" list. The prohibition applies to calls to listed cell phone and wireline numbers. The Department of Consumer Protection encourages consumers to sign up with the national list, which automatically places their numbers on the state list. The department's Website, http: //www. ct. gov/dcp/, has links to the national registry and to federal and state complaint forms.
OTHER RESTRICTIONS ON COMMERCIAL CALLS TO CELL PHONES
FCC regulations (47 CFR Sec. 64. 1200) prohibit anyone from using an automated dialer or prerecorded or artificial voice (telemarketers routinely use these technologies) to call any number assigned to cell phone service or any service for which the called party is charged for the incoming call (as is often the case with cell phone service). The Direct Marketing Association maintains databases of (1) all of the numbers that were initially assigned to cell phone service and (2) numbers originally assigned to wireline service that the customer has subsequently transferred to cell phone service. The restrictions do not apply to calls made for an emergency purpose or when the called party has given his prior express consent. The regulations also bar anyone from making a call to a residential line of any type using an artificial or prerecorded voice without the prior express consent of the called party.
Similarly, Connecticut law (CGS Sec. 42-288a) prohibits:
1. calls to any consumer before 8 a. m. and after 9 p. m.,
2. calls at any time to any consumer who has requested the solicitor not to make any more calls,
3. solicitors from using any device that blocks the caller identification system of the called party, and
4. the use of recorded message devices.
These provisions apply to calls made to cell phones as well as wireline phones.
JUNK FAX LAWS
Federal law bars the use of any facsimile machine, computer, or other device to send an unsolicited advertisement to a facsimile machine. "Unsolicited advertisement" means any material advertising the commercial availability or quality of any property, goods, or services that is transmitted to any person without his prior express invitation or permission (47 USCA § 227 (b)(1)(C)).
Anyone permitted by state laws or rules to bring an action in state court may sue for (1) violation of the federal law, (2) monetary losses resulting from the violation or $500 in damages, whichever is greater, or (3) both. The court may increase the award to as much as three times the amount of actual loss or damages if it finds that the defendant willfully or knowingly violated its provisions (47 USCA § 227 (b)(3)). State attorneys general who discover a pattern or practice of unsolicited transmissions to their state residents may sue to recover losses or collect damages up to the same monetary limits (47 USCA § 227 (f)(1)).
Similarly, state law bars anyone from sending unsolicited advertisements by fax. Anyone aggrieved by unsolicited fax advertisements may bring a civil action to enjoin further violations and recover actual damages plus court costs and attorney's fees or $200, whichever is greater. The aggrieved party must bring the action within two years of the violation (CGS § 52-570c).
FEDERAL CASE LAW
The federal courts have upheld the federal “Do Not Call” registry against First Amendent challenges. In Mainstream Marketing Services Inc. v. FTC, 358 F.3d at 1233, 1236, cert denied 125 S. Ct. (2204), the Court of Appeals for the Tenth Circuit held that the registry did not violate the First Amendment protection provided to commercial speech. That decision overturned an earlier district court ruling that the registry was unconstitutional because it prohibited commercial calls while permitting calls from charities and politicians.
In reaching its decision, the Court of Appeals followed the U.S. Supreme Court's decision in Central Hudson Gas & Elec. Corp. v. Pub. Serv. Comm'n of N.Y., 447 U.S. 557, 566 (1980). In this case, the Court established a three-part test governing First Amendment challenges to regulations restricting non-misleading commercial speech that relates to lawful activity. First, the government must assert a substantial interest to be achieved by the regulation. Second, the regulation must directly advance that governmental interest, meaning that it must do more than provide “only ineffective or remote support for the government's purpose” id. at 564. Third, while the regulation does not have to be the least restrictive measure available, it must be narrowly tailored not to restrict more speech than necessary. See id.; Board of Trs. of the State Univ. of N.Y. v. Fox, 492 U.S. 469, 480 (1989). Together, the final two factors require that there be a reasonable fit between the government's objectives and the means it chooses to accomplish these ends. United States v. Edge Broad. Co., 509 U.S. 418, 427-28 (1993). The court of Appeals followed Utah Licensed Beverage Ass'n v. Leavitt, 256 F.3d 1061, 1069 (10th Cir. 2001) in holding that the government bears the burden of asserting one or more substantial governmental interests and demonstrating a reasonable fit between those interests and the challenged regulation.
In contrast, a federal district court found that the government failed to show that there was a reasonable fit between the ban on using prerecorded messages to residential telephones and the legitimate goal of enhancing residential privacy. However, the Court of Appeals reversed this ruling (Moser v. FCC, 826 F. Supp. 360, reversed 46 F 3d 970, cert. denied 515 U.S. 1161 (1993).
The federal junk fax law has successfully withstood challenges on variety of constitutional grounds. In Destination Ventures, Ltd. V. FCC, D. Or., 844 F. Supp. 632, aff'd 46 F 3d 54 (1994), the court held that the law was a valid content-based restriction on commercial speech. It held that the law (1) directly advanced the government's interest in protecting consumers from economic harm resulting from unfair shifting of advertising costs from the advertiser to the customer and (2) was narrowly crafted to serve the specific purpose for which it was designed. The courts in Kenro, Inc. v. Fax Daily, Inc. S.D. Ind., 962 F. Supp. 1162 (1997) and Minnesota ex. Rel. Hatch v. Sunbelt Communications and Marketing, D. Minn. 282 F. Supp. 2d 976 (2002) issued similar rulings. The Kenro decision also held that the minimum $500 fine for violation of the law was not so severe as to vilate due process.
In the above cases, the courts addressed laws that regulated commercial speech. In Mainstream Marketing Services, the Court of Appeals specifically chose not to the address the constitutionality of extending the “Do Not Call” provisions to political or charitable callers.