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
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
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
“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.
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
“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