District Court Finds No Violation of First Amendment in TCPA Suit Brought By Coalition of Bi-Partisan Political Organizations

By Andrew C. Glass, Gregory N. Blase, Christopher J. Valente, Michael R. Creta, and Elma Delic

The U.S. District Court for the Eastern District of North Carolina recently rejected a First Amendment challenge to a portion of the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227(b)(1)(A)(iii). In American Association of Political Consultants, Inc., et al. v. Sessions, et al., Case No. 5:16-cv-00252-D (E.D.N.C.), a bi-partisan coalition of political groups sued the federal government.  The coalition asserted that the TCPA’s prohibition on making auto-dialed calls or texts to cell phones without the requisite consent (the “cell phone ban”) imposes a content-based restriction on speech that does not pass strict scrutiny and is unconstitutionally under-inclusive.  (The plaintiffs’ complaint was previously discussed here.) The government defended the TCPA’s constitutionality.

In briefing summary judgment, the plaintiffs argued that exceptions to the cell phone ban––such as the exception for debt collection calls made on behalf of the government––afforded commercial speech greater protection than political speech in violation of the First Amendment. In response, the government argued that the cell phone ban is content-neutral and nonetheless survives strict scrutiny because it is narrowly tailored to serve a compelling interest, namely consumer privacy.  (The parties’ summary judgment briefing was previously discussed here.)

The Court granted summary judgment for the defendants, ruling that the TCPA’s exceptions, such as the government-debt exception, do not violate the First Amendment for at least three reasons. First, the Court concluded that consumer privacy is a compelling government interest and that the cell phone ban furthers this interest.  Second, the Court determined that the cell phone ban is narrowly tailored.  Third, the Court stated that the cell phone ban is the least restrictive means available to meet the policy objectives set out by Congress in the TCPA.  Apart from addressing the constitutionality of the TCPA, the Court also held that it lacked subject matter jurisdiction to determine the validity of certain exemptions promulgated by the Federal Communications Commission (“FCC”).  (Determining the validity of FCC rulemaking under the Communications Act, including the TCPA, is vested in the federal courts of appeal.)

Although the Court agreed with the plaintiffs’ argument that the government-debt exception is subject to strict scrutiny because it is a content-based regulation, the Court nonetheless concluded that “protecting the well-being, tranquility, and privacy of the individual’s residence is a compelling state interest and that the [cell phone] ban furthers that compelling interest.” The Court further highlighted that the U.S. Supreme Court has made it clear that “automated or prerecorded telephone calls made to private residences … were rightly regarded by recipients as an invasion of privacy.”

The Court continued by stating that the government-debt exception is narrowly tailored to further the compelling government interest of protecting consumer privacy. The Court pointed out that “the TCPA is quite limited in what it prohibits.”  Furthermore, the Court recognized that the FCC limits the number of times an individual may be called based on the government-debt exception.

Finally, the Court disagreed with the plaintiffs’ suggestions of alternative, less restrictive means of achieving consumer privacy. According to the Court, none of the plaintiffs’ proposed alternatives would “be at least as effective in achieving the legitimate purpose that Congress enacted the TCPA to serve.”  The Court concluded that the current restrictions are the least restrictive and most efficient way of achieving the TCPA’s purpose.

There have now been six U.S. District Courts that have rejected First Amendment arguments concerning the TCPA cell phone ban. Nonetheless, it remains unclear whether other organizations will bring further litigation in pursuit of such claims.