In June and July 2017, a bi-partisan group of political organizations and the federal government filed briefs in support of cross-motions for summary judgment in a case challenging, on First Amendment grounds, the constitutionality of the TCPA. The case is before the U.S. District Court for the Eastern District of North Carolina. See Am. Ass’n of Political Consultants, Inc. v. Sessions, No. 5:16-cv-252 (E.D.N.Y.). The political groups include the American Association of Political Consultants, Democratic Party of Oregon, Public Policy Polling, Tea Party Forward PAC, and Washington State Democratic Central Committee. The groups argue that the TCPA’s prohibition on placing autodialed telemarketing calls or text messages to cell phones without obtaining prior express written consent (47 U.S.C. § 227(b)(1)(A)(iii)) violates the Constitution because:  

  • By creating a content-based exemption for debt collection calls, it places an illegal content-based restriction on speech; and
  • It is not narrowly tailored to further a compelling governmental interest, nor the least restrictive means for achieving that interest (i.e., fails the strict scrutiny test).

The government argues that the prohibition is a time, place, and manner restriction of the method, rather than the content, of the autodialed calls and text messages, and is therefore content-neutral. Further, the government contends that the prohibition would survive a strict scrutiny analysis because it is narrowly tailored to serve the compelling governmental interest in protecting consumer privacy, and does so by the least restrictive means, as the prohibition lacks a comparable alternative. The government also requests that, if the Court finds the debt-collection exemption unconstitutional, it sever that provision and leave the remainder of the prohibition intact. The Court’s decision on these cross-motions could have a great impact on businesses’ ability to place autodialed telemarketing calls and text messages.