Although the commercial speech doctrine does not require that the government use the 

least restrictive means available to further its interest, an administrative agencies must  carefully 

calculate the costs and benefits  associated with proposed restrictions.

89

  Moreover, the 

Commission must demonstrate that a significantly less restrictive alternative strategy will not 

sufficiently advance its regulatory interests.

90

The NPRM contains no discussion of the costs and burdens that its proposed disparate 

regulation of Web and Internet services would inflict on the thousands of legitimate businesses 

operating in these industries.  Moreover, the Commission makes no attempt to show why its 

broad enforcement powers under Section 5 of the FTC Act are insufficient to address any 

telemarketing fraud perpetrated by unscrupulous sellers of Internet and Web services to 

businesses.

91

C. 

At a Minimum, The Commission Should Narrow The Scope of The Proposed 

Internet and Web Services Exception. 

In light of its constitutional flaws, Cox urges the FTC to reject as a whole the proposed 

exception of Web and Internet services from the exemption for business to business calls.  If the 

Commission nonetheless retains some form of its original proposal, any restrictions on bus iness 

to business telemarketing calls involving Web and Internet services should, at the very least, be 

tailored more narrowly to address only the specific fraudulent practices giving rise to the 

Commission's concerns, and to minimize undue interference with the legitimate marketing 

practices of firms that are vital to the continued growth of the Internet economy.   

89

Cincinnati v. Discovery Network, Inc.

, 507 U.S. 410, 417 n. 13 (1993). 

90

U.S. West v. FCC

, 182 F.3d 1224, 1235 (10th Cir. 1999), 

cert denied

, 120 S.Ct 2215 (2000); 

Rubin v. Coors 

Brewing Co.

, 514 US 476, 490 91 (1995). 

91

 In fact, the four cases cited by the FTC in the NPRM as evidence of the extent of the fraud in this area all involved 

enforcement actions undertaken by the FTC under its Section 5 powers. 

29