The TCPA Is Constitutional

Dozens of courts have already found the Telephone Consumer Protection Act (TCPA) to be constituional. However, a unlikely group of politicions are again challenging the TCPA because they want to send you additional political robocalls. The Tea Party Republicans and the Democrats have unified to fight on the same side on May Friday the 13th. The date says it all. These groups filed a lawsuit aiming to declare the TCPA unconstitutional, naming Attorney General of the United States Loretta Lynch, in her official capacity, as the defendant.

In American Association of Political Consultants, Inc. v. Lynch, No. 16-0252, the five political groups

include (in alphabetical order):

  • 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
  • Washington State Democratic Central Committee, located in Seattle, Washington

Notice Allegations

This is certainly not the first time that the TCPA has been accused of violating our First Amendment rights. Most other complaints have either been relatively common or unsuccessful. This time, the entire history of the TCPA and at least six of its amendments, which are based on the identity of the caller, are evaluated. Count I alleges that the TCPA impedes upon our freedom of political speech. One of the exemptions of the TCPA favors commercial speech, but does not allow political speech, therefore violating the constitutional rights of political groups.

Count II alleges that the TCPA is under-inclusive, because it exempts free-to-end user calls and government debt collection calls, but not calls regarding political speech. The plaintiffs feel the TCPA should be tailored, albeit narrowly, to further any compelling government interest, because the speech of the political groups on the plaintiffs’ side of this claim is no more harmful than the speech that the TCPA allows in the content-based exemptions. Finally, due to the content-based restrictions in the TCPA exemptions, the plaintiffs feel strongly that the TCPA should be subject to strict scrutiny.

Clearly, these political organizations would like to be able to make their phone calls without scrutiny under the TCPA or fear of any potential litigation. However, they are requesting the TCPA be declared unconstitutional, plus preliminary and permanent injunctions, while a simple exemption for political phone calls may be the best solution. Otherwise, the TCPA would no longer be able to protect consumers from the unwanted and annoying calls they receive that currently violate the TCPA. At Keogh Law LTD, we will be interested in following this case over the next several months as the outcome unravels. One possible outcome is that because the prohibition against calls to cell pones are content neutral, the court will find the like virtually every other court that the TCPA is constitutional and at most find the exemptions that exempt certain calls unconstitional. This would be a win for consumers because the exemptions allow certain callers to make unsolicited calls.

If you have any questions or want clarification on the TCPA, feel free to contact Keogh Law LTD. We are here for all of your TCPA law needs.

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