Purchasing the Federal “Do-Not-Call” List During the Government Shutdown

Summary

During the government shutdown, access to the “do-not-call” list has been disabled.  A company seeking to comply with the list thus faces a dilemma of how to “scrub” its calls against lists when it literally cannot purchase access to the list.

Article

As you may know, access to the “do-not-call” list, both for current subscribers and applicants seeking to purchase access to the list (i.e. getting new SAN) has been disabled during the government shutdown.  A company seeking to comply with the list thus faces a dilemma of how to “scrub” its calls against lists when it literally cannot purchase access to the list.

First, the company could not make its calls, which are protected speech under the First Amendment of the United States’ Constitution.  This decision to not speak would amount to an unconstitutional prior restraint. 

Second, the entity could call its list without regard for whether the number is on the “do-not-call” list or not.  This option would potentially subject the caller to complaint and enforcement action after government has restarted.

Third, the company could obtain access to the list from a third party vendor, keep records of the date of access, and pay for the list when the government restarts.  Although it technically is illegal to use the list without paying the FTC for access to same, it is this third option that I would recommend based on the legal doctrine of impossibility.

No court, in my opinion, would allow a prior restraint, even of commercial speech, to be imposed based on the government shutdown; but similarly, no court would allow a caller to call numbers on the “do-not-call” list with carte blanche during the shutdown.

It is thus the third option that I recommend and I know that there are many entities with access to relatively current versions of the list that provide their clients highly effective scrubbing and other services at reasonable fees.