Can Congress Revive Do Not Call?

The first court decision striking down the Federal Trade Commission’s Do Not Call list properly found that Congress had not delegated such power to the FTC (though Congress had given such authority to the FCC, which declined to act). Without a doubt, Congress can (and will) overturn this decision by explicitly granting such power to the FTC. But then the other shoe dropped. A second federal court held yesterday that the Do Not Call list is unconstitutional because it violates the First Amendment (see opinion here). The court’s reasoning merits serious consideration. Should it withstand appeal, Congress will be unable to authorize the creation of a Do Not Call list, at least one along the lines the FTC initially proposed.

Jonathan H. Adler — Jonathan H. Adler is the inaugural Johan Verheij Memorial Professor of Law and Director of the Center for Business Law & Regulation at the Case Western Reserve University School of ...