As we’ve previously discussed, while First Amendment challenges to the TCPA have largely been unsuccessful, First Amendment challenges to restrictions on calls or texts made in connection with political campaigns may fare differently. Further evidence of this distinction came last week, when a district court in the Eastern District of Arkansas declared Arkansas’s restriction on using automated or prerecorded telephone calls to “‘solicit information, gather data, or for any other purpose in connection with a political campaign’” unconstitutional as “a content-based regulation that does not survive strict scrutiny.” Gresham v. Rutledge, No. 16cv241, 2016 U.S. Dist. LEXIS 97964, at *2-3 (E.D. Ark. July 27, 2016) (quoting Ark. Code Ann. § 5-63-204(a)(1)). Continue reading
Friday afternoons typically see a high volume of notices of new TCPA complaints. Those complaints usually offer little variation: while the names of the parties and counsel sometimes change, they all typically name businesses as defendants and challenge their compliance with the TCPA. Friday, May 13th was no different, except in one key respect: one of those new complaints names Attorney General Loretta Lynch as the defendant and challenges the TCPA itself. Continue reading
As the defense bar’s preeminent public resource on TCPA litigation and regulation, TCPA Blog has been invited to contribute a regular column to Law360. In the first such column, Bradley Andreozzi, Michael Daly, and Justin Kay discuss how the FCC’s interpretations of the TCPA violate the First Amendment rights. They write:
For an agency charged with regulating communications, the Federal Communications Commission has shown itself to be remarkably indifferent to First Amendment rights. In its recent brief in the consolidated appeal from its July 2015 omnibus ruling on the Telephone Consumer Protection Act, the FCC blandly assured the D.C. Circuit that “[e]very court” has held that the TCPA’s restrictions “easily pass muster under the First Amendment.” FCC Brief at 73-74. But it all but ignored that, rather than “directly challenge the TCPA’s constitutionality,” the petitioners in that appeal challenge the FCC’s “interpretations of the statute.” Id. at 72-73. On that issue, the D.C. Circuit will be writing on a clean slate, and the First Amendment challenges are serious.
They then highlight three serious First Amendment concerns, specifically that the FCC’s: (1) healthcare exemption restricts necessary speech; (2) recycled numbers ruling demands the impossible; and (3) ATDS interpretation is unconstitutionally vague.
The U.S. District Court for the Eastern District of Michigan recently dismissed a TCPA complaint upon finding the plaintiff’s factual allegations insufficient to satisfy the pleading standards imposed by both Rule 8(a) and the Supreme Court’s opinions in Twombly and Iqbal. The Court’s order provides useful guidance concerning the oft-litigated issue of whether a complaint contains sufficient facts to plausibly allege a defendant’s use of an ATDS.
In June, the Internet Association (“IA”)—which represents Internet giants such as eBay, Facebook, Google, Amazon, LinkedIn and Twitter, among others—suggested that the FCC clarify that Internet companies which “facilitate their users to communicate” are not “not caller[s] or sender[s] (or the initiator[s] of a call or text) for purposes of the TCPA.” In a letter dated June 11, 2015, the IA addressed what it viewed as an uncertainty under TCPA law: namely the extent to which any email and/or social media platform may potentially be liable under the TCPA for the calls or messages initiated by any one of the enormous number of users of the platform.