Political Organizations Mount First Amendment Challenge to TCPA’s Cell Phone Ban Restricting Autodialed and Prerecorded Voice Calls to Constituents

By Joseph C. Wylie II, Molly K. McGinley, Courtney E. Torres

Although the primary target of the TCPA is telemarketing and commercial solicitations, certain TCPA restrictions, including prohibitions on the use of prerecorded voice messages and automatic telephone dialing systems (“ATDS”) for calls placed to cellular phones, 47 U.S.C. § 227(b)(1)(A)(iii); 47 C.F.R. § 64.1200(a)(1)(iii) (hereinafter “the cell phone ban”), apply with equal force to calls made by political campaigns.

On May 12, 2016, several political organizations, American Association of Political Consultants, Inc. (“AAPC”), Democratic Party of Oregon, Inc. (“DPO”), Public Policy Polling, LLC (“PPP”), Tea Party Forward PAC (“TPF”), and Washington State Democratic Central Committee (“WSDCC”) (collectively, “Plaintiffs”), brought a First Amendment challenge to the prohibition on making unsolicited calls to wireless telephone numbers by filing a declaratory judgment action in the United States District Court for the Eastern District of North Carolina against the Attorney General of the United States.  American Association of Political Consultants, Inc., et al. v. Lynch, No. 5:16-cv-00252-D (E.D.N.C. May 12, 2016).

In the two-count complaint, the Plaintiffs allege that while the FCC and Congress have recently passed several exemptions to the cell phone ban for certain categories of commercial phone calls, no similar exemption has been established for political speech, to which the First Amendment “affords the broadest protection.”  Rather, according to the Plaintiffs, the TCPA restricts their “fully-protected, political speech,” thereby favoring commercial speech over the noncommercial political speech,” resulting in an unconstitutional content-based restriction on speech in violation of the First Amendment. The Plaintiffs further allege that the TCPA is unconstitutional because the exemptions for certain categories of commercial calls to cellular phones render the statute underinclusive and not narrowly tailored because the Plaintiffs’ speech is “no more harmful” than the types of commercial speech permitted under the exemptions to the cell phone ban.

The Plaintiffs seek preliminary and permanent injunctions enjoining the enforcement of the TCPA by the Defendant against the Plaintiffs and those similarly situated.  The Plaintiffs also seek relief in the form of a declaratory judgment that the TCPA–apparently, without limitation to the cell phone ban specifically or as applied to similarly situated political organizations–is unconstitutional on its face.

There have been numerous First Amendment challenges to the TCPA since it was enacted in 1991, none of which have ultimately proved successful.  Recently, in Gomez v. Campbell-Ewald Co., 768 F.3d 871 (9th Cir. 2014) the Ninth Circuit rejected a constitutional challenge, based on different substantive grounds, to the same section of the TCPA at issue in AAPC.  In Gomez, the defendant, a marketing consultant hired by the Navy that allegedly sent recruiting text messages to the plaintiff, argued that the government’s interest only extends to the protection of residential privacy and that the statute is not narrowly tailored to the extent that it applies to cellular text messages.  In concluding that Campbell-Ewald’s First Amendment argument lacked merit, the Circuit Court stressed that it already had affirmed the constitutionality of this section of the TCPA in Moser v. FCC, 46 F.3d 970, 973–74 (9th Cir. 1995) (upholding the statute and finding that the protection of privacy is a significant interest, the restriction of automated calling is narrowly tailored to further that interest, and the law allows for many alternative channels of communication).

This also is not the first time the TCPA has been challenged on First Amendment grounds by a political organization.  In Maryland v. Universal Elections, Inc., 729 F.3d 370 (4th Cir. 2013), for example, the State of Maryland filed a TCPA lawsuit against political consultant Julius Henson and his company Universal Elections, Inc., when they placed thousands of robocalls to voters without complying with the disclosure requirements of the TCPA.  Like the Plaintiffs in AAPC, the defendants argued that the TCPA is a content-based burden on political speech that cannot withstand a strict-scrutiny standard of review in violation of the First Amendment, however the district court rejected this challenge. The Fourth Circuit affirmed the decision of the district court, holding that the TCPA’s disclosure restrictions on automated and prerecorded telephone messages are content-neutral and advance important governmental interests.

It remains to be seen whether this First Amendment challenge to the TCPA will be successful, and if so, what the impact will be on non-political speech.