Last week, the Seventh Circuit (Judge Flaum, Judge Rovner, and Judge Castillo, Chief Judge of the Northern District, sitting by designation) undertook the heady task of analyzing the interplay of Indiana’s Automated Dialing Machine Statute (“Autodialer law”) and the Telephone Consumer Protection Act, 47 U.S.C. 227 (“TCPA”). Patriotic Veterans, Inc. v. Indiana, Case No. 11-3265 (Nov. 21, 2013) (“Patriotic Veterans”). Both the context of the dispute, as well as the unresolved constitutional issue, keeps this case on our “Must Watch” list for 2014.
In the district court, Patriotic Veterans, a not-for-profit group with the stated purpose of informing voters of the positions taken by political candidates on issues of interest to veterans, moved for a declaratory ruling that Indiana’s Autodialer law is either: (1) preempted by the TCPA, or, alternatively (2) in violation of the First Amendment. Under the TCPA, federal law exempts automated phone calls “not made for a commercial purpose.” 47 C.F.R. Sec. 64.1200(a)(3)(ii) (2005). Indiana, however, places greater restrictions on such automated messages, exempting specific calls by employers to employees, or schools to parents, but remaining silent on exempting calls made for a political purpose. Ind. Code Sec. 24-5-14-5(a). As a result, Patriotic Veterans could not send out its “100,000 messages in a three hour period” that allowed it to reach constituents when time is of the essence, “such as on the eve of an election.” Patriotic Veterans, pg. 4. Patriotic Veterans requested an affirmative injunction issue, arguing that because it was an out-0f-state (Illinois) corporation, Indiana could not regulate interstate activities– a field left only, according to the plaintiff, to Congress. The district court agreed, holding that despite a savings clause within the TCPA for state statutes regulating intrastate calls, Congress explicitly preempted any attempt to limit interstate calls, and ultimately granted an injunction against the enforcement of the Autodialer law. Because the district court held the statute was preempted, it did not address the constitutional issues. Patriotic Veterans, Inc. v. Indiana, 821 F. Supp. 2d 1074, 1079 (S.D. Ind. 2011). The district court denied the State of Indiana’s request to stay the injunction pending appeal; on appeal, however, the Seventh Circuit stayed the injunction. Patriotic Veterans, pg. 4, n.3.
The Seventh Circuit, in an eloquent analysis of both express and implied preemption, reversed. Notable moments of the Court’s analysis include: (1) noting the initial presumption that state laws are not preempted without a stated clear and manifest purpose by Congress to the contrary, id. at 7; (2) emphasizing that no matter the oddity of the explicit statutory language, it is not the court’s job to fix the statute, id. at 9; (3) holding that the TCPA does not expressly preempt state statutes regulating interstate calls, id. at 10; (4) stating that “the fact a state has more stringent regulations than a federal law does not constitute conflict preemption,” id. at 14; (5) holding that more stringent regulations do not conflict, but support, the federal purpose of the TCPA, id. at 16; (6) engaging in a discussion of the merger of the concepts of “purposes and objectives” category of conflict preemption and field preemption, id. at 17; and (7) an amusing “frolic and detour” into the TCPA’s legislative history, recalling that a court is better served “examining the text, not by psychoanalyzing those who enacted it,” id. at 22. In reversing, the Seventh Circuit remanded the matter back to the district court for an analysis of the whether the Autodialer Act violates the free speech rights protected by the First Amendment to the United States Constitution. Id. at 23.
While the case arises in a non-class context, it provides insight on some brewing issues on the TCPA horizon, as well as very practical guidance for litigators on preemption issues. We will continue to monitor this case as it returns to the Southern District of Indiana and keep our readers apprised.