The TCPA and the First Amendment: Where We Are and Where We’re Going

Following the Supreme Court’s long awaited, but ultimately disappointing, decision in Barr v. AAPC, one thing is clear. Broad, facial challenges to the TCPA based on the government-backed debt exemption are no longer viable, with the exemption severed. But what about the other constitutional and free-speech related issues that continue to plague the TCPA? This post will tackle some of the major issues that will continue to work their way through the courts.

As the Czar has remarked frequently, the TCPA’s constitutional infirmities that have the biggest real world impact were never really at issue in Barr. The Supreme Court was therefore left with a rosy view of the TCPA that did not reflect the core problems faced by real companies making legitimate calls.

The unresolved issue that immediately jumps off the page is the prohibition on calls made via an ATDS or prerecorded voice. Two issues are present in the ATDS debate – one of statutory interpretation, and another of free speech. The statutory interpretation question is straightforward: is a random or sequential number generator required, or does dialing “automatically” from a stored list suffice? The answer to that question, however, does not resolve the constitutional question.

Regardless of how the Supreme Court or FCC interpret the definition of an ATDS, the restriction still has to be justified under the Supreme Court’s test for content neutral time, place, and manner restrictions. With the breadth of speech captured by the TCPA, it is difficult to see how the ATDS restriction could survive an overbreadth challenge, particularly under Watchtower Bible & Tract Society v Stratton.

In Watchtower Bible, the Supreme Court held 8-1 that a municipal permit requirement to engage in door-to-door advocacy, though content neutral, was overbroad. Significantly, it held that asserted interests in “residential privacy” and “fraud prevention” could not justify such a sweeping restriction. Sound familiar? Even more significant, the Supreme Court held that the permit requirement was not necessary because residents could place themselves on a do-not-solicit list.

The parallels to the TCPA are striking. If residential privacy is truly the concern addressed by the TCPA, then the ATDS and prerecorded message prohibitions are not necessary, because the TCPA’s Do Not Call registry provision adequately addresses such concerns. Further, the Do Not Call provisions are more tailored to the actual consumer harm – to the extent any exists – because recipients of annoying telemarketing calls do not really care what technology was used to reach them. And fraud is better addressed by longstanding wire fraud statutes.

Thus, even if the TCPA as a whole is constitutional, the ATDS and prerecorded message restrictions should still fail an overbreadth challenge under the time, place, and manner analysis.

Another issue of constitutional proportions is the degree to which the TCPA designates rulemaking functions to administrative agencies. The TCPA existed for 20 years before a court relied on the 2003 and 2008 orders to extend the definition of an ATDS beyond random and sequential number generators. In the 20 years between 1991 and 2011, Congress made no changes to the TCPA’s ATDS definition during that time. But unelected members of an administrative agency made subtle statements that resulted in an explosion of TCPA that continues to plague a broad spectrum of American companies. Those administrative rules – not any action from Congress – has led to the TCPA becoming the greatest restriction on speech in American jurisprudence, to borrow the Czar’s phrase.

The DC Circuit somewhat reigned in TCPA rulemaking in ACA International, and the Supreme Court called into question Hobbs Act jurisdiction stripping in PDR Network. To date, however, we are not aware of any court that has addressed administrative rules that have created a multitude of content-based distinctions within the TCPA that go well beyond the government-backed debt exemption addressed in Barr. At some point courts will need to grapple with those decisions and fashion a way to address them under Barr’s novel severability analysis.

Long story short, the final word on the TCPA’s constitutionality has not yet been written. With the broad, overreaching decision behind us, it’s time to focus on more targeted challenges that go to the heart of the real-world impact of the TCPA.

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