A law designed to protect consumers from unwanted automated calls to their cell phones is being challenged by a bipartisan group, which argues that it is infringing their right to free speech.

The Telephone Consumer Protection Act was enacted in 1991 to address the growing number of telephone marketing calls. The FCC, which is charged with interpreting the TCPA, has revised its rules for TCPA enforcement throughout following decades, including considerations for cell phone calls that were not as pertinent in the early 1990s.

Now, five organizations including Public Policy Polling have filed suit alleging that their right to political speech is infringed by Federal enforcement of TCPA regarding cell phones. They are asking for a preliminary injunction enjoining TCPA’s enforcement, as well as a declaratory judgment that the TCPA violates the First Amendment, according to the complaint.

The complaint targets a TCPA provision described colloquially as the “cell phone call ban,” which prohibits auto-dialed or prerecorded phone calls to cell phones. The FCC has carved out six exemptions to this ban, including a wireless carrier’s calls to its customers, certain healthcare-related calls and calls regarding banking that suggest a risk of fraud or theft.

The challenge alleges that by allowing certain types of auto-calls but not others – for example, political polling – the TCPA represents a content-based restriction of speech, which is only permitted by the First Amendment under very narrow circumstances. Plaintiffs argue that the TCPA’s restriction of different types of calls do not meet the standard for acceptable content-based speech restrictions.

“What this bipartisan group is ultimately looking to do is challenge the ban on political speech,” Charles Harris, a partner at Mayer Brown who has written about the issue, told the Cook County Record. “They make political calls and they are kind of in the crosshairs of the TCPA given their business.”

The issue is particularly relevant to them because of the proliferation of lawsuits against businesses and organizations that use auto-dialers, Harris added.

“It’s just one provision of [the TCPA],” Harris said of the cell phone call ban. “But that one provision has been the impetus for all of these sham – what we consider sham – TCPA challenges.”

TCPA lawsuits have risen sharply over the past decade, according to WebRecon data. A December 2015 analysis found that there were only 14 TCPA litigants in 2007, which jumped to 354 in 2010, and by 2015 there were nearly 4,000.

Therefore one major group that stands to benefit from a successful challenge to the cell phone call ban would be businesses that have been affected by these lawsuits, Harris said.  

“If the court decides that that ban is unconstitutional, not only would that help these type of political organizations but presumably it would also help businesses that are being affected by the TCPA legislation,” he said.

Chevron deference will pose an important obstacle to the TCPA challenge, Harris said. Because the FCC is specifically tasked with interpreting the TCPA, the plaintiffs have a particular burden to show that their interpretations have been unreasonable.

Nevertheless, Harris said he believes the challenge has “a strong chance” to succeed.

He noted a similar case, Cahaly v. LaRosa, in which the 4th Circuit Court of Appeals upheld the decision that a ban on so-called “robocalls” in South Carolina was unconstitutional. The suit was filed by a political consultant who had been using an automated polling system over the phone.

The federal TCPA challenge has managed to bring diverse groups to the same team from across seemingly huge ideological chasms. The plaintiffs include the Democratic Party of Oregon and Washington State Democratic Central Committee as well as the Tea Party Forward PAC.

“I think it says that the issue affects a lot of different people,” Harris said. “It’s a blanket effect on businesses and on organizations regardless of what your political affiliation is.”

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