May I Call You?

In 2003, Congress enacted a restriction on telemarketing, known as the National Do-Not-Call list, which made it illegal after October 1, 2003, for telemarketers to place unsolicited commercial calls to consumers. A consumer may register up to three residential phone numbers for the list. The Act does not prohibit calls from political campaigns and others seeking support for political candidates, nor calls from certain charities seeking donations. The Act provides for significant financial penalties imposed by the Federal Communications Commission on any telemarketer or company that violates the law. Some telemarketer organizations claim that the law is unconstitutional.

Also in 2003, Congress enacted the CAN SPAM Act, prohibiting certain kinds of spam e-mail nationwide. The CAN SPAM Act also states that, "This act supersedes any statute, regulation or rule of a state that expressly regulates the use of electronic mail to send commercial messages, except to the extent that the state rule prohibits deception in any portion of a commercial electronic mail message or information attached thereto." In September, 2005, California enacted a new anti-SPAM law that applies to spam e-mail either sent from a server in California or sent to a California e-mail address.

What constitutional law issues do these statutes raise, and who should prevail? How, specifically, should the courts resolve these constitutional issues according to the current state of the law? What substantial government interest is Congress attempting to protect with the National DNC List? Where is that found in U.S. Constitution? What other strategies could the government employ to reach the same result?

What substantial interest was Congress trying to protect with these laws?