The TCPA As Great Uniter? Democrats and Tea Party Republicans Join Forces, File Suit Seeking To Have The TCPA Declared Unconstitutional

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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.

In American Association of Political Consultants, Inc. v. Lynch, No. 16-0252 (E.D.N.C. filed May 12, 2016), five political organizations filed suit seeking a declaration that the TCPA’s restrictions on automated or prerecorded calls to cell phones violates the First Amendment. The suit also seeks preliminary and permanent injunctions enjoining enforcement of the TCPA, nominal damages of $1, and attorneys’ fees and costs. The five named plaintiffs are:

  • American Association of Political Consultants, Inc., a “bipartisan, nonprofit association of political professionals located in McLean, Virginia” whose members make calls to cell phones “to solicit political donations and to discuss political and governmental issues”;
  • Democratic Party of Oregon, located in Portland, Oregon;
  • Public Policy Polling, LLC, a “for-profit company located in Raleigh, North Carolina” that uses automated telephone surveys to “measure[] and track[] public opinion”;
  • Tea Party Forward PAC, located in Alexandria, Virginia; and,
  • Washington State Democratic Central Committee, located in Seattle, Washington.

The plaintiffs allege that the TCPA is a content-based restriction on speech, citing the fact that, “[s]ince 1992, the FCC and Congress have passed at least six exemptions to the cell phone call ban which apply based on the identity of the caller and/or the content of the exempted calls.” Compl. ¶ 25. They identify the four free-to-end-user exemptions created by the FCC pursuant to 47 U.S.C. § 227(b)(2)(C) (wireless carriers to their own customers, package delivery notifications, healthcare notifications, and exigent financial notifications) as well as Congress’s recent exemption of debt collection calls to cell phones “made solely to collect a debt owed to or guaranteed by the United States.” Id. ¶¶ 26, 27, 29, 30, 31. They identify the sixth as an “intermediary consent exemption” allegedly created by the FCC’s decision in GroupMe. Id. ¶ 28.

The plaintiffs allege that these exemptions result in a regulatory scheme that restricts speech based on its content and favors commercial speech over “fully-protected political speech.” Id. ¶¶ 38-43. They further argue that these content-based restrictions mean that the TCPA should be subjected to strict scrutiny and that the TCPA fails that test because the restrictions are under-inclusive (by exempting free-to-end user calls and government debt collection but not political speech) and not narrowly tailored to further any compelling government interest. Id. 45-56.

As we’ve noted previously, while First Amendment challenges to the TCPA were relatively common (and unsuccessful) after the statute was passed, those were almost invariably in the context of unsolicited advertising in “junk fax” cases. A case involving political speech, however, may well be a political animal of a different color. Indeed, the Fourth Circuit’s decision in Cahaly v. Larosa, 796 F.3d 399 (4th Cir. 2015), lays out a roadmap for invalidating the TCPA, and was likely a driving force behind the decision to file in North Carolina.

In Cahaly, the Fourth Circuit addressed the constitutionality of South Carolina’s version of the TCPA, which prohibited (with exceptions based on the implied or express consent of the called party) automated calls that are “for the purpose of making an unsolicited consumer telephone call” or “of a political nature including, but not limited to, calls relating to political campaigns.” Cahaly, 796 F.3d at 402. The District Court declared the statute unconstitutional as a content-based restriction that did not withstand strict scrutiny. The Fourth Circuit affirmed, finding that (i) South Carolina’s version of the TCPA was a facially content-based restriction, and (ii) South Carolina’s asserted government interest in protecting residential privacy from robocalls (which the Fourth Circuit assumed, but did not decide, was “compelling”) could be accomplished by less restrictive means such as time-of-day limitations, mandatory identity disclosures, and do-not-call lists; and (iii) the statute was both over- and under-inclusive. Id. at 405-06. There are, of course, some differences between the TCPA and South Carolina’s version, and the key question in going forward will be whether those differences result in a different outcome.

Trump Campaign Faces Second, Similar Suit in Same Court

Following on the heels of Plaintiff Joshua Thorne’s TCPA suit, the Donald J. Trump campaign was hit with a second TCPA lawsuit in as many days. See Roberts v. Donald J. Trump For President, Inc., No. 16-4676 (N.D. Ill. Apr. 26, 2016).  The Roberts Complaint concerns the same message (“Reply YES to subscribe to Donald J. Trump for President.  Your subscription will help Make America Great Again!  Msg&data rates may apply.”) and has been assigned to the same judge (Judge John Z. Lee) as the Thorne Complaint.  The Roberts Complaint, however, differs in a couple of key respects.

First, Roberts was filed by different plaintiffs’ counsel.  Second, Roberts includes additional allegations regarding how the Trump campaign purportedly obtained the phone numbers it texted: Roberts claims that he was required to provide his cell phone number to Event Brite when obtaining a free ticket for a March 11, 2016 Trump campaign rally, but that neither Event Brite nor the Trump campaign obtained plaintiff’s prior express consent to text him.

Third, the plaintiff in Roberts also purports to represent a slightly different class: while the purported class in Thorne is defined as nationwide class of all individuals who, during the last four years, did not provide their cell phone numbers to the Trump campaign but nonetheless received a text regarding the campaign, the purported class in Roberts is defined as a nationwide class of all individuals since June 2015 who provided their cell phone numbers to Event Brite to obtain a ticket to attend a Trump-related event and received a text from the Trump campaign despite not providing prior express consent to the Trump campaign.

Trump Campaign Sued In Federal Court in Illinois

Earlier this week, Illinois resident Joshua Thorne filed a purported class action against Donald J. Trump for President, Inc., in the Northern District of Illinois. See Thorne v. Donald J. Trump For President, Inc., No. 16-4603 (N.D. Ill. Apr. 25, 2016).  The suit seeks statutory damages, attorneys’ fees, and injunctive relief for alleged TCPA violations.  Thorne alleges that although he never provided his phone number to the Trump campaign, he recently received a text message from 88022 (an SMS short code leased by the Trump campaign) stating “Reply YES to subscribe to Donald J. Trump for President.  Your subscription will help Make America Great Again!  Msg&data rates may apply.”  Thorne further alleges that the message was sent on behalf of the Trump campaign by Tatango, Inc., which he alleges offers both bulk-messaging software and a free TCPA compliance guide.  Thorne seeks to represent a nationwide class of all individuals who, during the last four years, did not provide their cell phone numbers to the Trump campaign but nonetheless received a text regarding the campaign.  Thorne claims that the Trump campaign sent thousands of the same or similar text, and seeks $500-$1500 on behalf of each class member for each such text.

The Complaint is noteworthy because it is the second TCPA complaint filed in as many months by the same plaintiff’s counsel targeting a political campaign. (See our prior coverage of election-related TCPA issues here).

Tippecanoe and the TCPA, Too, Two

Following up on our March 9 reminder, and just in time for Super Tuesday II, the Federal Communications Commission’s Enforcement Bureau issued an Enforcement Advisory on March 14 titled, “Biennial Reminder for Political Campaigns about Robocall and Text Abuse.” The advisory (similar to past advisories) is a reminder to “political campaigns and calling services that there are clear limits on the use of autodialed calls or texts (known as ‘robocalls’) and prerecorded voice calls.” The advisory summarizes the TCPA’s regulations on (1) calls to cell phones, (2) calls to landlines, (3) identification requirements for prerecorded voice messages, and (4) “line seizure” restrictions. The advisory also includes an “At a Glance” summary of regulations as applied to Political Calls and a series of Frequently Asked Questions with contact information for the Enforcement Bureau for those who have unanswered questions or lingering concerns. Continue reading

Tippecanoe and the TCPA Too

With election season under way, it bears repeating that candidates for office are not immune from the restrictions imposed by the TCPA. As the FCC’s Enforcement Bureau explained in an advisory that we discussed previously here, while “[p]olitical prerecorded voice messages or autodialed calls—whether live or prerecorded—to most landline telephones are not prohibited, so long as they adhere to the identification requirements” mandated for all prerecorded messages, the “broad prohibition” on calls to cell phones and other specific types of phone numbers (e.g., health care/emergency lines) “covers prerecorded voice and autodialed political calls, including those sent by nonprofit/political organizations.” Candidates (or their supporters) who are not aware of the TCPA (or confused about the difference between the restrictions on informational calls to cellular phones versus such calls to residential landlines and not aware of the difficulties in managing recycled number issues) risk finding their campaign embroiled in litigation, as evidenced by a new TCPA filing last week. Continue reading

Political Campaigns: Consider Yourself Warned

If you had not noticed, the fall election campaign season is in full swing. The FCC’s Enforcement Bureau certainly has noticed, and reacted by releasing an unusual “Enforcement Advisory” this week, reminding campaigns and campaign promoters that there are TCPA limits on permissible uses of prerecorded voice message and autodialed calls in election campaigns. Restrictions on acceptable modes of communication vary depending upon whether a campaign or campaign promoter is delivering a call to a residential landline phone or a cell phone, which can be difficult to tell if a phone number has been recycled. Nevertheless, the Enforcement Advisory highlights a $2.9 million proposed fine levied against Dialing Services, LLC earlier this year for its alleged infractions of FCC requirements and warns all entities engaged in campaign calling and texting that they ignore FCC rules and restrictions at their peril of becoming subject to possible FCC enforcement scrutiny and fines. Fines for violations can go as high as $16,000 per violation, which is computed by call or text rather than by telemarketing campaign found to be impermissible by the Enforcement Bureau. While courts are the favored venue of the plaintiffs’ bar for seeking damages, the FCC’s Enforcement Bureau is aggressively staking out its own regulatory turf as the gubernatorial and congressional campaigns use as many tools as possible to galvanize potential voters.

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