TCPA Quick Hitter: National Republican Senatorial Committee’s Constitutional Challenge to TCPA Rejected—Highlights Why Congress Unlikely to Act on Broadening TCPA in Response to Facebook

As I wrote over the weekend, I think it is unlikely Congress moves swiftly to broaden the TCPA in light of Facebook.

Let me give you another example of why that is so.

The NRSC—recent target of numerous TCPA suits—just took a shot at asking a judge in Arizona (who just happened to have been appointed by Obama) to declare the TCPA unconstitutional as applied to its campaign text messages. You know the punchline here: the judge denied the motion and left the Republican Senatorial Committee dangling in the lawsuit. See Whittaker v. Winred Tech. Servs. Llc, No. CV-20-08150-PCT-JJT, 2021 U.S. Dist. LEXIS 55036 (D. Az.  March 23, 2021).

Now I’m not saying there was anything inappropriate about the ruling—lots of courts have come to the same conclusion—but the optics are always interesting in these sorts of situation.

More broadly, of course, with the Facebook ruling out the texts by the NRSC are unlikely to be actionable and a swift dismissal is likely headed its way. So the outfit responsible for getting Republicans elected to the Senate just got its bacon saved by Facebook –and you think Congress is going to work swiftly to broaden the TCPA again?

Not going to happen.

As long as industry behaves itself.

Separately, I am working on a piece explaining what Congress should do—if it elects to legislate against “Robocalls” again.

Happy Monday.



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