TCPA Has ‘Chilling Effect’ on Protected Speech, Says St. Louis-Area BMW Dealership

BMW of West St. Louis defended against the allegations of Telephone Consumer Protection Act wrongdoing in plaintiff Daniel Human’s Dec. 14 first amended complaint by launching into an unusually lengthy attack on the statute’s constitutionality.

Human alleges the Manchester, Missouri, dealership hired telemarketers to place calls unlawfully to numbers listed on the Missouri and federal do not call registries (see 2312110003). But the TCPA, on which Human’s claims rely, violates the First Amendment, said the defendant’s answer Tuesday (docket 4:23-cv-01577) in U.S. District Court for Eastern Missouri in St. Louis.

The TCPA is “both over inclusive and under inclusive” because it has a “chilling effect” on protected speech “while not adequately solving the purported problem Congress sought to address,” said the dealership. The TCPA also is “more extensive than necessary” because there are other ways to address unwanted telephone calls “that would restrict much less speech,” it said. The TCPA further doesn’t serve a substantial governmental interest, and the TCPA doesn’t “directly and materially advance that interest,” it said.

The TCPA also violates the Fifth and 14th amendments under the “void-for-vagueness doctrine,” said the defendant’s answer. Provisions of the TCPA and the rules and regulations enacted under the statute, such as the definition of prior express written consent, are “ambiguous,” it said. The act’s rules “permit selective enforcement,” and they fail to give “adequate warning of the conduct the TCPA proscribes,” it said.

The TCPA and the Missouri no-call list law also violate the due process clauses of the Fifth and 14th amendments, said the answer. The TCPA provides for statutory damages of $500 to $1,500 for each violation, and the Missouri law provides for statutory damages of up to $5,000 for each violation, it said.

Those statutory damages provisions are “grossly disproportionate” because plaintiff Human didn’t suffer “any actual harm,” said the defendant’s answer. The TCPA and the Missouri no-call law thereby violate the excessive fines clause of the Eighth Amendment, it said.