Democrats and Republicans Find Common Ground – Ask Court to Declare the TCPA Unconstitutional

Last Friday five diverse political organizations joined forces to file a lawsuit seeking to declare the Telephone Consumer Protection Act (TCPA) unconstitutional. The suit, American Association of Political Consultants, Inc. v. Lynch, No. 16-0252 (E.D.N.C.) was filed on May 12, 2016. A copy of the complaint can be found here.

The five plaintiffs are:

1. 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
2. Democratic Party of Oregon, located in Portland, Oregon
3. Public Policy Polling, LLC, a for-profit company located in Raleigh, North Carolina that uses automated telephone surveys to measure and track public opinion”
4. Tea Party Forward PAC, located in Alexandria, Virginia
5. Washington State Democratic Central Committee, located in Seattle, Washington

The named defendant is Loretta Lynch, in her official capacity as Attorney General of the United States.

Allegations in the Complaint

The complaint goes through the history of the TCPA and the various exemptions to the act created by the Federal Communication Commission (FCC) since the law was enacted in 1991.

In Count I of the complaint the plaintiffs allege that the TCPA restricts fully-protected, political speech. Their argument is that the FCC permits prerecorded and ATDS calls or text messages to cell phones (or any service for which the called party is charged) if made pursuant to one of the exemptions and that by favoring commercial speech over Plaintiffs’ political speech, the TCPA cell phone call ban violates the constitutional rights of these political organizations.

In Count II of the complaint the plaintiffs allege that the TCPA is “under-inclusive”;

1. It discriminates against some speakers but not others without a legitimate ‘neutral justification’ for doing so.”
2. There is no relation between any legitimate government purpose behind the cell phone call ban and the speech banned, regulated, or allowed by it.
3. Plaintiffs’ speech is no more harmful than the speech allowed by the content based exemptions to the cell phone call ban.

The Requested Relief

The plaintiffs request the following relief:

1. A preliminary injunction enjoining enforcement of the TCPA by Defendant, its agents and employees against these Plaintiffs, and others similarly situated;
2. A permanent injunction enjoining enforcement of the TCPA by Defendant, its agents and employees against these Plaintiffs, and others similarly situated;
3. A declaratory judgment pursuant to Fed. R. Civ. P. 57 and 28 U.S.C. § 2201 that the TCPA on its face is unconstitutional as it violates the First Amendment to the United States Constitution;
4. An award of nominal damages in the amount of $1.00 as a result of Defendant’s violation of Plaintiffs’ constitutional rights;
5. An order requiring that Defendant pay all costs, interest, and attorneys’ fees as may be incurred with this civil action as allowed by law; and
6. An order providing such other and further relief as the Court deems just and proper and for the purpose of redressing Plaintiffs’ grievances.

insideARM Perspective

It will be interesting to follow this case in the coming weeks and months. While it is clear that these five groups would like to make political calls without fear of TCPA litigation, perhaps the preferred outcome is an exemption for their calls, not the relief requested in the complaint. See items 1 and 2 in the requested relief.  What other individuals or entities are “similarly situated” to these groups?

As noted above, the requested relief in the complaint is to declare the TCPA, on its face, unconstitutional.  Theoretically, such a remedy would apply equally to any type of call, not just political calls. I am not certain that all financial contributors to the political parties (particularly lawyers that file or defend TCPA suits) would like to see the entire statute declared unconstitutional.