National Cable and Telecommunications Association v. Federal Communications Commission

When Congress passed the Telecommunications Act of 1996, it included confidentiality requirements for consumers’ proprietary information. Under the act, this included information such as quantity, type, destination, and location of phone calls. The Federal Communications Commission (FCC) (defendant) implemented a rule in 1998 that required telecommunications carriers to obtain customers’ consent to disclose the information to certain parties who would use the information for commercial purposes. This was the opt-in method. A challenge was brought against that rule on First Amendment grounds, and in response the FCC implemented a rule that used an opt-out method. This rule required carriers to allow customers only to opt out of certain disclosures. Following this rule, certain data brokers began obtaining significant amounts of customer information from carriers. This led to significant threats to consumers’ privacy. In response to this development, the FCC implemented a third rulemaking, this time returning to an opt-in requirement for disclosure to certain third parties for marketing-communications purposes (opt-in rule). A group of telecommunication providers (plaintiffs) challenged the opt-in rule, claiming that it violated their rights under the First Amendment. The telecommunications providers petitioned for the opt-in rule to be set aside.