The Ninth Circuit upheld the constitutionality of the Telephone Consumer Protection Act (hereinafter "TCPA") in two February 1995 decisions: Destination Ventures, Ltd. v. F.C.C. and Moser v. F.C.C. Destination Ventures marked the first examination of the TCPA by any United States Court of Appeals. In that case, the Ninth Circuit held that the TCPA ban on unsolicited facsimile (hereinafter "fax") advertising was a constitutional regulation of commercial speech since the provision reasonably fit the government interest in preventing advertisement cost-shifting to the consumer. Five days later, in Moser, the same three-judge panel reversed a district court decision and upheld the TCPA's bar of prerecorded telephone sales messages. The Ninth Circuit held that automated telemarketing threatens residential privacy which justifies narrowly tailored statutory restrictions on such marketing methods. This comment examines and attempts to reconcile these two Ninth Circuit decisions with prior Supreme Court holdings involving constitutional challenges to commercial speech regulations. It concludes that both Destination Ventures and Moser are consistent with the Constitution and with the Congress' desire to avoid advertising cost-shifting. However, it suggests that the court exaggerated or overemphasized the harms caused by telemarketing and unsolicited fax advertising in upholding the corresponding regulations. Finally, it recommends that the TCPA be expanded to encompass other types of unsolicited faxing and to restrict advertising on the Internet.
Michael D. McConathy,
Destination Ventures, Ltd. v. F.C.C. and Moser v. F.C.C.: How Much Should the Telephone Consumer Protection Act Restrict Your Phone, Fax and Computer?, 26 Golden Gate U. L. Rev.