Can the Exemptions Swallow the TCPA? The TCPA is Facing Fresh First Amendment Attacks.

In recent weeks two new First Amendment challenges have been leveled against The Telephone Consumer Protection Act.  The challengers – Facebook and a group of political organizations – have used the recent exemptions that the FCC and Congress have created to the TCPA’s ban on auto-dialed calls to mobile phones to argue that the TCPA’s speech restrictions are content-based, and thus subject to a higher level of constitutional scrutiny. 

The TCPA has survived constitutional challenges before.  For example, the Eighth Circuit and other trial courts have upheld Congress’ ban on unsolicited faxes, and the Fourth Circuit has upheld the TCPA’s identity-disclosure requirement.  And, most relevant here, the Ninth Circuit has upheld the TCPA’s ban on auto-dialed calls and text messages.   But in each of those cases the courts treated the TCPA’s restrictions as content neutral, which triggers a lower level of constitutional scrutiny.  These new cases argue that more recent exceptions to the TCPA have turned the law into a content-based restriction, triggering the highest level of scrutiny applicable under Supreme Court precedent: strict scrutiny.

On May 12, 2016, a group of political organizations – ranging from the Tea Party Forward PAC to the Democratic Party in the State of Washington – sued Loretta Lynch, the U.S. Attorney General, for an injunction against the enforcement of the TCPA’s ban on auto-dialed calls to mobile phones and a declaration that the TCPA violates the First Amendment.  They catalog six different exceptions to that rule that the FCC and Congress have established since 2012, including exceptions for when the recipient isn’t charged for the call, package delivery notifications, non-telemarketing healthcare calls and texts, fraud and identity-theft-related texts from banks and other institutions, and Congress’ most recent exemption for its own debt-collection calls and texts.  The plaintiffs allege that this collection of exceptions renders the TCPA’s ban on autodialed calls and texts to mobile phones a content-based restriction subject to strict scrutiny.  By favoring those categories of speech “over the noncommercial political speech of Plaintiffs,” they claim that the cell phone ban “violates the constitutional rights of these political organizations.”  They also claim that the TCPA cannot survive a strict-scrutiny challenge because it is underinclusive:  “Plaintiffs’ speech is no more harmful than the speech allowed by the content-based exemptions to the cell phone ban.” 

And on April 25, 2016, Facebook moved to dismiss a lawsuit filed against it in federal district court in San Francisco.  The plaintiff sued over a text message that Facebook sent him inviting him to wish one of his Facebook friends a happy birthday.  Facebook attacks the claim on the basis that it doesn’t violate the TCPA, but it also attacks the TCPA’s ban on auto-dialed calls to mobile phones on First Amendment grounds.  Like the political organizations’ suit, it argues that the “TCPA is plainly content-based because it is riddled with exceptions that allow the government to pick and choose what speech is desirable and what speech is not – the hallmarks of a content-based restriction of speech.”  Facebook points to Congress’ recent exemption for the federal government’s own debt-collection calls.  Facebook pulls no punches:  “It is difficult to imagine a more blatant example of the government choosing speech it clearly favors for naked financial reasons (debt collection calls about government-issued or government-backed debt) over speech that it does not (any other debt collection call).”  Facebook noted that this is a “question of first impression and one of critical importance in light of the proliferation of TCPA lawsuits.”