TR Daily Democratic Lawmakers Urge Supreme Court to Uphold TCPA
Monday, March 2, 2020

Democratic Lawmakers Urge Supreme Court to Uphold TCPA

Fifteen Democratic members of Congress, led by Sen. Ed Markey (D., Mass.) and Rep. Anna Eshoo (D., Calif.), have urged the Supreme Court to uphold the Telephone Consumer Protection Act and its restrictions on robocalls for which consumer consent has not been obtained.

The Supreme Court agreed last month to review a 2019 decision by the U.S. Court of Appeals for the Fourth Circuit (Richmond) that a 2015 amendment to the TCPA violates the free speech clause of the First Amendment of the U.S. Constitution (TR Daily, Jan. 13).

The 2015 amendment exempted from the prior consent requirement robocalls that are related to debts owed to or guaranteed by the federal government. The Fourth Circuit noted in part that the huge number of loans that are guaranteed by the federal government means that the exemption does not adhere to a judicial test that content-based restrictions on speech be “narrowly tailored” if they are to pass First Amendment muster. However, the appeals court said that the robocall prohibition could stand by severing the content-based exemption for government debt-collection calls (TR Daily, April 24, 2019).

A press release issued by Sen. Markey and Rep. Eshoo said, “If the Court agrees with the Fourth Circuit that the debt-collection exemption is unconstitutional but decides that the provision cannot be separated from the rest of TCPA, then there is a possibility that the Court could invalidate all of TCPA.” However, the amici curiae brief they filed today with 13 other members of Congress does not address the issues of whether the debt-collection exemption is unconstitutional or whether that provision is severable from the rest of the TCPA.

The brief said that banning “automated or prerecorded telephone calls to the home, except when the receiving party consents to receiving the call or when such calls are necessary in an emergency situation affecting the health and safety of the consumer, is the only effective means of protecting telephone consumers from this nuisance and privacy invasion.”

Eliminating the TCPA restrictions would mean that consumers would face robocalls not only from “scammers” willing to violate the law, but also from “legitimate businesses—who would likely love to touch base with consumers for surveys and reminders, as well as telemarketing and other purposes—[and who] would be free to call as often as they wish,” the lawmakers said.

“The constant bombardment of our mobile devices could render them effectively useless. As a means of protecting themselves, some consumers might simply disable the voice calls feature on their phones, possibly causing medical personnel and businesses to miss critical calls and preventing the legitimate and necessary communications and commerce from flowing from one phone to another,” they added.

They said that as a “content-neutral restriction on the manner in which certain calls may be made, at most the TCPA’s automated call restrictions are subject to intermediate scrutiny. To withstand review [under intermediate scrutiny], the law ‘need not be the least restrictive or least intrusive means’ of serving the government’s significant interests.”

However, they also argued that the TCPA would withstand strict scrutiny, if the court saw fit to apply it, “because it is ‘narrowly tailored to serve a compelling interest.’”

Also signing on to the brief were Sens. Tom Carper (D., Del.), Jeff Merkley (D., Ore.), Tammy Baldwin (D., Wis.), Richard Blumenthal (D., Conn.), Robert Menendez (D., N.J.), Ron Wyden (D., Ore.), and Cory Booker (D., N.J.) and Reps. Yvette Clarke (D., N.Y.), Jerry McNerney (D., Calif.), Peter Welch (D., Vt.), Kathy Castor (D., Fla.), Dianna DeGette (D., Colo.), and André Carson (D., Ind.). —Lynn Stanton, [email protected]

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