Amicus Briefs Filed in SCOTUS TCPA Case

The Supreme Court agreed to review the constitutionality of the Telephone Consumer Protection Act (TCPA) in January. Eight amicus briefs were filed on March 2.  The briefs were submitted on behalf of associations of state and local governments, trade associations, privacy groups, members of Congress, and Verizon.

The statute limits telemarketing calls and calls made using automatic telephone dialing systems and artificial or prerecorded messages. The Court is set to examine if the federal government debt collection exemption to the TCPA is constitutional. If not, the Court is also set to determine if the exemption can be struck down while leaving the rest of the law intact. The government debt collection exemption allows for automatically dialed calls made to collect debts that are owed to or guaranteed by the government of the United States.

The state of Indiana’s brief recounted that Indiana and 31 other states have filed the amici curiae to protect consumers from robocalls. They stated that by “seeking to eliminate the robocall ban in its entirety, respondents threaten the ability of States to fight one of the most pressing consumer-protection issues that their residents face.” Americans received in excess of 4.7 billion robocalls in January 2020. Robocalls scammed Americans out of at least $10 billion in 2019, according to the brief. The state argued that the TCPA is important to fight against robocalls, in part by allowing state and federal jurisdiction and action against robocalls and claims against them. The state claimed that the Fourth Circuit’s TCPA government debt collection exemption ruling, which declared it “impermissible content-based discrimination” has “overlook[ed] that the exception applies based on a call’s purpose and the relationship between the parties – not based on the call’s content.” They argued that the court was correct in stating that the solution is to sever the exemption and retain the rest of the robocall ban.

Members of Congress stated that the TCPA prohibits robocalls because “banning such automated or prerecorded telephone calls…is the only effective means of protecting telephone consumers from this nuisance and privacy invasion.” They noted that TCPA is even more important today in helping to limit the barrage of robocalls and protect consumers from scams. Congress states that “TCPA does not and was never intended to restrict speech.” It was designed to protect the First Amendment. Rather, the legislation “merely regulates communications when particular technologies are employed based on the relationship between the parties.” They argued that since the TCPA only limits automated or prerecorded calls in order to protect Americans it does not violate the First Amendment.

Verizon’s brief in support of the exemption argued that they help to maintain the balance between protecting consumers and the integrity of the networks.  Verizon noted the measures it had taken to protect its customers against robocalls. It states that its “efforts to protect its customers from robocalls would be significantly more difficult without the TCPA’s prohibitions on many types of autodialed calls.” Further, the exemptions “are constrained both by a requirement that they be limited to calls not charged to the end user and that such exceptions be ‘in the interest of the privacy rights’ the statute was intended to protect.” The legislation prohibits robocalls made to subscribers without their consent, which is “a critical protective measure that, if removed, would risk exponentially increasing the already large number of unwanted robocalls.” To illustrate, Verizon shared that landline phones receive two times more robocalls than cellular phones. Lastly, Verizon states that the exceptions should not warrant a SCOTUS ruling that would hinder the ability to adopt and implement “TCPA’s general prohibition on non-consented-to calls to cellular phones.”

The case is set for argument on April 22.