Telemarketing, Technology, and the Regulation of Private Speech: First Amendment Lessons from the FCC’s TCPA Rules

Abstract

This article considers the viability of the Telephone Consumer Protection Act (TCPA) in light of recent Supreme Court First Amendment precedent (such as Reed v. Town of Gilbert and Sorrell v. IMS Health) and technological & regulatory developments (such as the FCC’s ongoing consideration of rules that would allow or require prospective callers to implement technologies that obviate many of the TCPA’s concerns). The TCPA is the primary law prohibiting “robocalls” – phone calls made using autodialers or pre-recorded messages without the consent of the call recipient. In recent years robocalls have become one of the primary consumer protection issues facing regulators – with more than 4.1 billion of these calls placed eachmonth, consumer concern about them dominate complaints received by both the FCC and FTC. Simultaneously, as cellphones have become a ubiquitous means by which individuals engage with one another and the public square, the scope of the TCPA has expanded from protection of the privacy of the home (long recognized as Constitutionally permissible) to a more general shield from unwanted communications (generally not Constitutionally permissible).

Because the TCPA regulates speech, it has been subject to repeated First Amendment challenges since it was enacted in 1991. Those challenges have consistently been reviewed subject to intermediate scrutiny, under which the statute has consistently survived. Recent developments in First Amendment precedent, however, suggest that such challenges would likely be subject to strict scrutiny today. Moreover, recent technological and regulatory developments suggest that the statute is not sufficiently tailored to survive application of intermediate scrutiny, let alone its stricter cousin. Given the sharp increase in TCPA suits in recent years -- from just 14 suits in 2007 to nearly 5,000 in 2016 – and this legal evolution, this article provides analysis relevant to certainly-forthcoming judicial and regulatory consideration of the TCPA.

The TCPA also raises difficult questions beyond the traditional First Amendment analysis. For instance, the government itself regulates many aspects of the architecture of the telephone network. In this role, it has slowed or prevented the adoption of technologies that could dramatically reduce the problems the TCPA seeks to address by curtailing speech in order to (ineffectively) address. And the TCPA is largely premised on the government’s important interest in protecting the sanctuary of the home as a place in which individuals can be free from intrusions from the outside world. But as mobile telephones increasingly displace residential wireline telephones, the TCPA’s effect has grown sub silentio from protecting the sanctuary of the home to protecting the sanctuary of the phone. These issues raise important questions about the government’s power to regulate private speech, particularly in an era of rapid technological change.

Keywords: TCPA, First Amendment, telephone consumer protection, FCC, Reed, Town of Gilbert, telemarketing, autodialer, robocall