The FTC's proposed exception selectively regulating Internet and Web services fails each 

of these requirements.  The Commission asserts that telemarketing fraud is prevalent in the 

Internet and Web services industries.  Nonetheless, the NPRM cites only four cases in which the 

FTC detected fraud in the field of Web services and cites no cases at all involving telemarketing 

fraud in the sale of Internet services.

86

  Viewed in light of the tremendous volume of commerce 

involving the sale of Internet and Web services, this small handful of cases suggests that the 

unique harms the FTC associates with Web and Internet services are more speculative than real. 

Likewise, the Internet and Web services exception fails the final prong of the

 Central 

Hudson

 analysis, which asks whether the speech restriction is  more extensive than necessary to 

serve the interests that support it. 

87

  To withstand this test, the FTC must demonstrate that its 

selective restriction on Web and Internet services represents  a reasonable fit between the 

[regulatory] ends and the means chosen to accomplish those ends . . . a means narrowly tailored 

to achieve the desired objective. 

88

  The Commission's proposal fails this requirement because it 

burdens all providers of Internet and Web services without regard to whether they are engaging 

in fraud.  It also is overinclusive because it subjects sellers of Web and Internet services to the 

privacy provisions of the TSR, such as the national do not call requirements, that largely are 

unrelated to the FTC's stated goal of reducing fraud.  At the same time, the FTC's proposal is 

fatally underinclusive because it would fail to prevent telemarketing fraud perpetrated through 

telemarketing transactions involving the myriad other products and services that are sold to 

businesses. 

86

See NPRM

, 67 Fed. Reg. 4492, 4531. 

87

Id.

 at 2421, citing 

Greater New Orleans

, 527 U.S. at 188. 

88

Id

. (citations omitted). 

28