Friday afternoons typically see a high volume of notices of new TCPA complaints. Those complaints usually offer little variation: while the names of the parties and counsel sometimes change, they all typically name businesses as defendants and challenge their compliance with the TCPA. Friday, May 13th was no different, except in one key respect: one of those new complaints names Attorney General Loretta Lynch as the defendant and challenges the TCPA itself.

In American Association of Political Consultants, Inc. v. Lynch, No. 16-0252 (E.D.N.C. filed May 12, 2016), five political organizations filed suit seeking a declaration that the TCPA’s restrictions on automated or prerecorded calls to cell phones violates the First Amendment. The suit also seeks preliminary and permanent injunctions enjoining enforcement of the TCPA, nominal damages of $1, and attorneys’ fees and costs. The five named plaintiffs are:

• American Association of Political Consultants, Inc., a “bipartisan, nonprofit association of political professionals located in McLean, Virginia” whose members make calls to cell phones “to solicit political donations and to discuss political and governmental issues”;

• Democratic Party of Oregon, located in Portland, Oregon;

• Public Policy Polling, LLC, a “for-profit company located in Raleigh, North Carolina” that uses automated telephone surveys to “measure[] and track[] public opinion”;

• Tea Party Forward PAC, located in Alexandria, Virginia; and,

• Washington State Democratic Central Committee, located in Seattle, Washington.

The plaintiffs allege that the TCPA is a content-based restriction on speech, citing the fact that, “[s]ince 1992, the FCC and Congress have passed at least six exemptions to the cell phone call ban which apply based on the identity of the caller and/or the content of the exempted calls.” Compl. ¶ 25. They identify the four free-to-end-user exemptions created by the FCC pursuant to 47 U.S.C. § 227(b)(2)(C) (wireless carriers to their own customers, package delivery notifications, healthcare notifications, and exigent financial notifications) as well as Congress’s recent exemption of debt collection calls to cell phones “made solely to collect a debt owed to or guaranteed by the United States.” Id. ¶¶ 26, 27, 29, 30, 31. They identify the sixth as an “intermediary consent exemption” allegedly created by the FCC’s decision in GroupMe. Id. ¶ 28.

The plaintiffs allege that these exemptions result in a regulatory scheme that restricts speech based on its content and favors commercial speech over “fully-protected political speech.” Id. ¶¶ 38-43. They further argue that these content-based restrictions mean that the TCPA should be subjected to strict scrutiny and that the TCPA fails that test because the restrictions are under-inclusive (by exempting free-to-end user calls and government debt collection but not political speech) and not narrowly tailored to further any compelling government interest. Id. 45-56.

First Amendment challenges to the TCPA were relatively common (and unsuccessful) after the statute was passed, those were almost invariably in the context of unsolicited advertising in “junk fax” cases. A case involving political speech, however, may well be a political animal of a different color. Indeed, the Fourth Circuit’s decision in Cahaly v. Larosa, 796 F.3d 399 (4th Cir. 2015), lays out a roadmap for invalidating the TCPA, and was likely a driving force behind the decision to file in North Carolina.

In Cahaly, the Fourth Circuit addressed the constitutionality of South Carolina’s version of the TCPA, which prohibited (with exceptions based on the implied or express consent of the called party) automated calls that are “for the purpose of making an unsolicited consumer telephone call” or “of a political nature including, but not limited to, calls relating to political campaigns.” Cahaly, 796 F.3d at 402. The District Court declared the statute unconstitutional as a content-based restriction that did not withstand strict scrutiny. The Fourth Circuit affirmed, finding that (i) South Carolina’s version of the TCPA was a facially content-based restriction, and (ii) South Carolina’s asserted government interest in protecting residential privacy from robocalls (which the Fourth Circuit assumed, but did not decide, was “compelling”) could be accomplished by less restrictive means such as time-of-day limitations, mandatory identity disclosures, and do-not-call lists; and (iii) the statute was both over- and under-inclusive. Id. at 405-06. There are, of course, some differences between the TCPA and South Carolina’s version, and the key question in going forward will be whether those differences result in a different outcome.