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57 Federal Communications Law Journal 81 (2004)


In 2003, the Federal Trade Commission ("FTC") revised its Telemarketing Sales Rule ("TSR") to establish a national Do-Not-Call Registry for commercial telemarketing. Congress directed the Federal Communications Commission ("FCC") to coordinate its telemarketing regulations under the Telephone Consumer Protection Act ("TCPA") of 1991 to achieve maximum consistency between the two agencies' telemarketing restrictions. Nonprofit solicitation is exempt from the national Do-Not-Call Registry, but is covered by other provisions of the FTC rule. The TSR created a new in-house no-call list requirement and imposed additional restrictions not previously known for nonprofit solicitors. The separate nonprofit provisions of the TSR raise unique issues regarding the scope of FTC authority and First Amendment rights of nonprofit organizations. These regulations are being disputed in separate litigation from the challenge to the national Do-Not-Call Registry. This Article looks at the current state of regulatory activity targeting charitable telephone solicitation. First, Rita Marie Cain examines the FTC's authority to adopt the provisions of the TSR that apply to nonprofit organizations. She argues that under free speech jurisprudence, charitable solicitation cannot be regulated like other commercial messages. Finally, Cain analyzes the new FTC restrictions on nonprofit solicitation to determine if they can withstand Constitutional scrutiny.