March 03, 2020

Wyden, Merkley Urge the Supreme Court to Uphold Statute Protecting Consumers from Unwanted Robocalls

Washington, D.C. – Oregon’s U.S. Senators Ron Wyden and Jeff Merkley joined more than a dozen members of Congress to file an amicus brief with the Supreme Court urging the Justices to uphold the validity of the Telephone Consumer Protection Act (TCPA), the long-established law that requires callers to obtain consent before robocalling.

“The TCPA remains an essential, if not more essential, piece of legislation today,” the members of Congress wrote in their brief. “By restricting calls made to cell phones using robocall technology, among other provisions, the TCPA prevents a countless number of unwanted robocalls every year, every day, and indeed every hour and minute, from intruding on Americans’ privacy, scamming their wallets, and overwhelming our confidence in the nation’s telephone networks.”

The members also warned that, “if the TCPA were invalidated, leaving no restrictions on robocalling, . . . annual unwanted automated calls potentially numbering in the trillions” would lead to a “constant bombardment of our mobile devices [that] could render them effectively useless.”

The TCPA is at risk in an appeal from the Fourth Circuit, where the American Association of Political Consultants challenged the constitutionality of the TCPA’s auto-dialing ban. The amicus brief from Wyden, Merkley and congressional colleagues makes clear that Congress passed the TCPA to stop the scourge of robocalls and also highlights how invalidating the TCPA could harm Americans’ privacy, make consumers more vulnerable to scammers and undermine the telephone as a means of communication.

Under the TCPA, automatic telephone dialing systems (i.e., technology that allows someone to make calls without manually dialing a number by hand) and artificial or prerecorded voices may not be used to make calls to cell phones, except with prior express consent of the called party, or if the call is being made for emergency purposes.

In 2015, Congress added an additional exception allowing those collecting federal debts (e.g. student loans, mortgages, taxes) to robocall and robotext without the consent of the party being called. In 2016, a group of political and polling organizations sued the Attorney General and the FCC, alleging that the TCPA auto-dialing ban for cell phones violated the First Amendment. The district court decided in favor of the government, upholding both the auto-dialing ban and the exception for government debt collection. On appeal, the Fourth Circuit struck down the debt collection exception as unconstitutional under the First Amendment, but upheld the rest of TCPA.

The Supreme Court agreed to review the case as it often does when a circuit court invalidates a federal statute as unconstitutional. If the Court agrees with the Fourth Circuit that the debt-collection exemption is unconstitutional but decides that the provision cannot be separated from the rest of TCPA, then there is a possibility that the Court could invalidate all of TCPA.

The members’ brief takes no position on the constitutionality of the 2015 debt collection exception, but urges the Court to uphold the remainder of the TCPA regardless of its findings on that specific exception.

Joining Wyden and Merkley on the amicus brief are U.S. Sens. Edward J. Markey, D-Mass., Tom Carper, D-Del., Tammy Baldwin, D-Wisc., Richard Blumenthal, D-Conn., Robert Menendez, D-N.J., and Cory Booker, D-N.J. alongside U.S. Reps. Anna G. Eshoo, D-Calif., Yvette D. Clarke, D-N.Y., Jerry McNerney, D-Calif., Peter Welch, D-Vt., Kathy Castor, D-Fla., Diana DeGette, D-Colo., and André Carson, D-Ind.      

A copy of the amicus brief can be found here.