I’ve been teasing this for a while, but here is my take on what Congress should do on the TCPA post-Facebook. Just my opinion. But I also happen to be right.
Back in 1991 Congress passed the one and only federal law designed to prevent Robocalls—the Telephone Consumer Protection Act (TCPA).
As any American can tell you, the statute has proven completely ineffective at preventing unwanted Robocalls from reaching our cell phones. This is true despite the fact that the law contains one of the richest private rights of action ever created by Congress—meaning that thousands of TCPA lawsuits are filed every year seeking to enforce the statute, but mostly against legitimate American businesses and not the real bad guys.
The central reason why the TCPA does not work is so obvious that it is overlooked. The TCPA regulates only the technology used to make calls, and not the type of calls being made. So a scam robocaller isn’t liable under the TCPA unless it uses a specific type of technology. And a legitimate business might find itself sued under the TCPA merely for using the wrong sort of telephone system. In other words, the statute gives the bad guys an escape hatch while laying a minefield for legitimate businesses that have trouble interpreting the statute’s vague terms.
Rather than repair this perfectly fixable flaw, Congress has stubbornly elected to keep the TCPA’s basic framework in place for decades—heaping additional penalties on businesses using certain calling technology as the Robocall epidemic worsened, but never seeking to regulate the actual type of calls that plague us the most.
Like any castle built upon sand, however, these provisions only hastened the statute’s demise– encouraging more frivolous lawsuits against legitimate businesses while the bad guys evaded the statute’s provision and kept on coming. Eventually the frivolous litigation became so bad the Supreme Court had to step in and –in a remarkable unanimous ruling—limit the TCPA to apply to only random-fire dialers.
And that’s where we find ourselves. The good guys can breathe a little fresh air. But the bad guys are revving up their dialers and getting ready to blast us anew.
So what can be done?
Obviously Congress must go back to the drawing board and afford broader and more effective protections for American cell phones. Rather than repeat the mistakes of the past, however, Congress needs to get real and get serious. It needs to focus on the content of calls and outright ban those calls (with criminal penalties attached) that seek to defraud Americans. And it shouldn’t matter in the least how those calls are being placed.
The First Amendment absolutely permits such legislation. Not all speech is protected by the First Amendment. That includes speech which is false, fraudulent, harassing, or create a clear and present danger of harm. In other words, the First Amendment permits Congress to ban the precise categories of speech that post the biggest risk to Americans and do the most damage to our cell phones. There is no reason that this speech shouldn’t be banned—and right now.
On the other hand, the focus on regulating calling technology needs to end. Forcing federal authorities—or private litigants—to prove what sort of calling system a scammer uses in order to make out a claim is absurd. It’s the easily-provable content of the call that matters—not the device that was used to make it. And, on the other hand, a welcomed call from a business or loved one should never be illegal under federal law merely because it was made using the wrong type of dialing technology. That’s just ridiculous.
Moreover, trying to fashion a definition of regulated calling technology that will serve the needs of Americans today and in the future is impossible. Technological advances will outrun legislation 10,000 times over and forcing the Courts to attempt to update the statute through post hac interpretations only ensnares lawful speech while allowing the bad guys an escape hatch over, and over, and over again.
Most importantly, the First Amendment is deeply endangered when Congress broadly restricts the use of critical calling technology, and then picks and chooses who isn’t subject to the ban. That allows the government to decide who gets to speak and who doesn’t—which is a really bad idea, as the Supreme Court had to remind everyone just last year (in yet another TCPA decision).
Speaking of really bad ideas, the era of government-endorsed censorship of calls to cell phones needs to come to an end. You may not know this, but the nation’s cell phone carriers have been quietly empowered—and encouraged—to decide which speech will, and won’t, reach your handset using blackbox algorithms of their own creation. While this power was afforded in a last-ditch effort to prevent robocalls (since the TCPA was a complete failure), the carriers now have shapeless discretion to fashion prior restraints on lawful speech in a manner that runs roughshod over First Amendment protections. Indeed, the carriers are not even required to focus on illegal speech—they may expressly ban speech they don’t think you’ll want to hear. That is simply un-American.
Bringing it all together, Congress can—and should—act to immediately ban certain categories of Constitutionally-unprotected, fraudulent, and annoying speech to American cell phones. It should abandon its current focus on regulating the technology used to make Robocalls and it should directly empower the nation’s cell phone carriers to serve as a private backstop to its efforts, but only insofar as the speech being blocked is not constitutionally-protected.
In this way Congress can swiftly, clearly, and constitutionally bring the Robocall epidemic to a swift and final conclusion while protecting the rights of legitimate American businesses and the First Amendment rights of all Americans.
 Facebook v. Duguid (2021)
 Barr v. AAPC (2020)