The First Amendment Status of Commercial Speech: Why the FCC Regulations Implementing the Telephone Consumer Protection Act of 1991 Are Unconstitutional

This Note considers the constitutionality of the FCC’s regulations implementing the no-recorded-message provision of the 1991 TCPA and concludes that they violate the First Amendment because they impermissibly distinguish between commercial and noncommercial speech. Part I explains the structure of the FCC’s recorded-message regulations and demonstrates that the regulations explicitly distinguish commercial recorded messages from other recorded messages. Part II examines First Amendment protection for commercial speech in light of three 1993 Supreme Court decisions that restructured commercial speech doctrine by holding that the government can single out commercial speech for regulation only in response to a distinct harm arising from the speech. Part ill applies the modern commercial speech test to the FCC regulations implementing the no-recorded-message provision of the TCPA and concludes that the FCC regulations violate the First Amendment protections accorded commercial speech because they are not reasonably related to any distinct harm caused by commercial speech, nor are they narrowly tailored.