Verizon Joins With CFA, NCLC to Defend TCPA Before SCOTUS

In an unusual collaboration, Verizon joined with the National Consumer Law Center and Consumer Federation of America to urge the Supreme Court to preserve the Telephone Consumer Protection Act when it decides later this year on Barr v. American Association of Political Consultants. To be heard April 22, the case could have big implications for the FCC and companies concerned about enforcement (see 2001130044). Verizon and the consumer groups filed an amicus brief in docket 19-631. Members of Congress and states supported the importance of preserving the TCPA. Retailers said TCPA is leading to lawsuits never envisioned by Congress, and should be reined in.

TCPA “plays a critical role in protecting the country’s communications customers from being deluged by automated, unsolicited calls to mobile phones,” said Verizon and the two groups Monday. “Amici do not take a position with regard to the constitutionality of the specific exemption to the TCPA that is before the Court or the proper remedy to be adopted if that exemption is unconstitutional. Instead, Amici argue that there is a compelling interest sufficient to justify any narrow restrictions on speech inherent in protecting consumers and the communications network from such calls.”

“It’s not unusual that we’re on the same page about the need to deal with unwanted robocalls, what’s unusual is we filed something public together,” NCLC Senior Counsel Margot Saunders told us Tuesday. “The document reflects the broad areas on which the consumer community and the provider community agree about the need to rein in unwanted robocalls and the need to give recipients of those calls control.” The consumer groups don’t agree 100% with Verizon, “but we found enough in common to write 10,000 words,” she said. Robocaller briefs show those filers are “very much hoping that the TCPA be held unconstitutional,” Saunders said.

“We hope that our combined voices, consumer groups, carriers and members of Congress, will have a strong impact,” said Susan Grant, CFA director-consumer protection and privacy. “We want to make clear that it is essential to uphold the protections.”

In the case at hand, the 4th U.S. Circuit Court of Appeals reversed a lower court decision and sided with plaintiffs that TCPA's debt-collection exemption contravenes the First Amendment's free speech clause. The 4th Circuit severed that flawed exemption from the law's ban on calls to cellphones by use of an automated dialing system or artificial or prerecorded voice (see 1904300118).

The Retail Litigation Center (RLC) and National Retail Federation said the “balanced” approach directed by Congress has been “hijacked by the plaintiffs’ bar to a ridiculous degree to extort monetary gains that the congressional sponsors never imagined.” Members of the groups face thousands of lawsuits yearly, they wrote. “Thirty years after its enactment, the TCPA has been contorted by the plaintiffs’ bar and interpreted by courts in ways that threaten legitimate businesses engaged in routine commercial activity with massive liability for communications far removed from the harassing, unwanted telemarketing calls.”

'Broken' TCPA

“TCPA is broken and puts conscientious retailers in an impossible position,” emailed RLC President Deborah White. “Consumers want the convenience of receiving text communications from businesses that they trust, but that communication is being threatened by the current state of the law which makes good faith compliance with the TCPA nearly impossible,” she said: “The Supreme Court needs to step in, clarify the scope of TCPA and tell the plaintiffs’ bar to STOP abusing the law.” RLC and NRF supported neither side in the case.

The Student Loan Servicing Alliance sought protection for calls to collect student debt. The brief doesn't align completely with either side. Those calls are “different in kind from the speech the rest of the TCPA was designed to prohibit -- abusive, unsolicited, and random autodialed calls,” the group said: The government-debt exception to the TCPA “merely advances distinct -- and compelling -- government interests in … ensuring that borrowers have every opportunity to avoid default.”

“TCPA does not and was never intended to restrict speech, as shown by Congress’ finding that the FCC should design rules ‘consistent with the free speech protections embodied in the First Amendment,’” said a brief by 15 members of Congress. “TCPA merely regulates communications when particular technologies are employed based on the relationship between the parties.” Signers include Sens. Ed Markey, D-Mass.; Ron Wyden, D-Ore.; and Cory Booker, D-N.J.; and Rep. Anna Eshoo, D-Calif. Markey was the House author of the TCPA when he was in the chamber.

Thirty-three states, led by Indiana, filed in support of the TCPA. “For decades, the States and the federal government have sought to protect consumers from un-wanted robocalls -- automated telephone calls that deliver a prerecorded message,” the states said: “These calls invade consumer privacy with harassing messages that come at all hours, day and night.” The brief listed on page 1 Indiana Attorney General Curtis Hill, a Republican, and his North Carolinian counterpart, Joshua Stein, a Democrat. AGs from Alabama, Alaska, Connecticut, Illinois, Maryland, Massachusetts, Virginia, West Virginia and elsewhere also were listed at the filing's end.

The Electronic Privacy Information Center defended this law. “Now is not the time to eliminate the TCPA autodialer ban,” EPIC said: “The government-debt exemption, added by Congress in 2015, applies only to a small group of callers. Federal courts unanimously found the original autodialer ban constitutional.”