NO. 19-631
`
`
`
`IN THE
`Supreme Court of the United States
`
`
`
`
`
`
`WILLIAM P. BARR, ATTORNEY GENERAL;
`FEDERAL COMMUNICATIONS COMMISSION,
`
`v.
`
`Petitioners,
`
`AMERICAN ASSOCIATION OF
`POLITICAL CONSULTANTS, INC., ET AL.,
`
`
`
`
`ON WRIT OF CERTIORARI TO THE UNITED STATES
`COURT OF APPEALS FOR THE FOURTH CIRCUIT
`
`
`
`Respondents.
`
`
`
`
`
`BRIEF OF AMICI CURIAE NATIONAL CONSUMER
`LAW CENTER, VERIZON, AND
`CONSUMER FEDERATION OF AMERICA
`IN SUPPORT OF NEITHER PARTY
`
`
`
`
`Tara Twomey
`Christopher M. Miller
` Counsel of Record
`Christopher D. Oatway*
`Margot F. Saunders*
`Leigh R. Schachter*
`National Consumer Law Center
`Verizon
`7 Winthrop Square
`1300 I Street, NW
`Washington, DC 20005 Boston, MA 02110
`(202) 515-2470
`(617) 542-8010
`Christopher.d.oatway
`TTwomey@nclc.org
` @verizon.com
`
`*On the Brief
`
`Counsel for Amici Curiae
`
`Dated: March 2, 2020
`
`BATEMAN & SLADE, INC.
`
`
`
`STONEHAM, MASSACHUSETTS
`
`
`
`
`
`IN THE
`Supreme Court of the United States
`
`
`
`
`
`
`WILLIAM P. BARR, ATTORNEY GENERAL;
`FEDERAL COMMUNICATIONS COMMISSION,
`
`v.
`
`Petitioners,
`
`AMERICAN ASSOCIATION OF
`POLITICAL CONSULTANTS, INC., ET AL.,
`
`
`
`
`ON WRIT OF CERTIORARI TO THE UNITED STATES
`COURT OF APPEALS FOR THE FOURTH CIRCUIT
`
`
`
`Respondents.
`
`
`
`
`
`BRIEF OF AMICI CURIAE NATIONAL CONSUMER
`LAW CENTER, VERIZON, AND
`CONSUMER FEDERATION OF AMERICA
`IN SUPPORT OF NEITHER PARTY
`
`
`
`
`Tara Twomey
`Christopher M. Miller
` Counsel of Record
`Christopher D. Oatway*
`Margot F. Saunders*
`Leigh R. Schachter*
`National Consumer Law Center
`Verizon
`7 Winthrop Square
`1300 I Street, NW
`Washington, DC 20005 Boston, MA 02110
`(202) 515-2470
`(617) 542-8010
`Christopher.d.oatway
`TTwomey@nclc.org
` @verizon.com
`
`*On the Brief
`
`Counsel for Amici Curiae
`
`Dated: March 2, 2020
`
`BATEMAN & SLADE, INC.
`
`
`
`STONEHAM, MASSACHUSETTS
`
`
`
`TABLE OF CONTENTS
`
`
`TABLE OF AUTHORITIES ....................................... v
`
`INTEREST OF AMICI CURIAE ................................1
`
`SUMMARY OF ARGUMENT .....................................4
`
`ARGUMENT ...............................................................7
`
`I.
`
`THE TCPA’S PROHIBITION ON
`NON-CONSENSUAL
`AUTOMATED CALLS TO
`CELLULAR CUSTOMERS
`PROTECTS CONSUMER
`PRIVACY, INTERSTATE
`COMMERCE, AND THE
`NATION’S
`TELECOMMUNICATIONS
`SYSTEM. ................................................9
`
`
`
`Congress Intended the
`TCPA to Protect
`Consumers’ Privacy from
`Unwanted Calls...........................9
`
`Businesses Are Also
`Protected from Automated
`Calls Made Without
`Consent. ..................................... 11
`
`The TCPA Protects the
`Integrity of the Nation’s
`Telecommunications
`System. ...................................... 12
`
`A.
`
`
`B.
`
`
`C.
`
`
`
`i
`
`
`
`D.
`
`Limited Exceptions to the
`Prohibition on
`Unconsented-to Calls to
`Cell Phones Are Not
`Inconsistent with the
`TCPA’s Purpose......................... 13
`
`UNWANTED ROBOCALLS ARE
`EVEN MORE PERNICIOUS
`TODAY THAN IN 1991 WHEN
`CONGRESS IDENTIFIED
`STOPPING THEM AS A
`PUBLIC POLICY PRIORITY. ............ 16
`
`A.
`
`B.
`
`
`C.
`
`Individuals and Businesses
`Increasingly Rely on Cell Phones
`as Their Primary Means of
`Communications. ...................... 16
`
`Technological Advances
`Have Made Sending
`Massive Numbers of
`Robocalls to Cellphones
`Inexpensive and Easy. .............. 17
`
`Illegal Robocallers Have
`Developed Techniques to
`Avoid Detection,
`Impersonate Others’
`Identities, and Bypass
`Tools that Service
`Providers Offer Their
`Customers to Block
`Unwanted Calls......................... 19
`
`
`II.
`
`
`
`
`
`
`
`ii
`
`
`
`
`
`
`
`III. THE TCPA’S LIMITATION ON
`ROBOCALLS WITHOUT
`CONSENT TO CELLULAR
`TELEPHONES IS CRUCIAL. ............ 21
`
`
`
`A.
`
`
`
`The Consent Requirement
`is a Key Deterrent That
`Would Be Lost if the
`Provision Were Struck
`Down. ......................................... 21
`
`1.
`
`
`2.
`
`Multiple
`Stakeholders
`Actively Investigate
`and Successfully
`Prosecute TCPA
`Cases on Behalf of
`Cellular
`Subscribers. .................... 21
`
`The Prohibition on
`Robocalls to Cellular
`Phones Without
`Consent is an
`Important Hook for
`Efficiently
`Investigating and
`Prosecuting
`Robocalls That Also
`Constitute Fraud. ........... 23
`
`
`
`
`
`
`
`iii
`
`
`
`3.
`
`Residential
`Subscribers’
`Experience
`Confirms That
`Removing the
`Consent
`Requirements for
`Cellular Subscribers
`Would Likely Cause
`Substantial Harm. .......... 25
`
`The Restriction on
`Robocalls to Cellular
`Phones Undergirds and
`Complements Multiple
`Industry and Regulatory
`Innovations That Protect
`Consumers from
`Unwanted Calls and
`Texts. ......................................... 28
`
`The Restriction on
`Robocalls to Cellular
`Phones is Necessary to
`Protect Cellular
`Subscribers from
`Emerging and Future
`Techniques to Spam
`Customers. ................................ 30
`
`
`B.
`
`
`C.
`
`
`CONCLUSION .......................................................... 32
`
`
`
`iv
`
`
`
`TABLE OF AUTHORITIES
`
`
`CASES:
`
`Braver v. NorthStar Alarm Servs., L.L.C.,
`
`2019 WL 3208651 (W.D. Okla.
`
`July 16, 2019) ................................................. 19
`
`Campbell-Ewald Co. v. Gomez,
`
`136 S. Ct. 663, 193 L. Ed. 2d 571 (2016) ....... 14
`
`Gold v. Ocwen Loan Servicing, L.L.C.,
`
`2017 WL 6342575 (E.D. Mich.
`
`Dec. 12, 2017) ................................................. 23
`
`McCurley v. Royal Seas Cruises, Inc.,
`
`331 F.R.D. 142 (S.D. Cal. Mar. 27, 2019) ...... 19
`
`STATUTES:
`
`15 U.S.C. § 6103 ........................................................ 21
`15 U.S.C. § 6104 ........................................................ 22
`47 U.S.C. § 227 .................................................. passim
`
`REGULATIONS:
`
`16 C.F.R. Part 310 ..................................................... 22
`47 C.F.R. § 64.1200 ....................................... 6, 7, 8, 26
`
`OTHER AUTHORITIES:
`
`AT&T, Survey Finds Mobile Technologies
`Saving U.S. Small Businesses More
`Than $65 Billion a Year (May 14, 2014) ........ 16
`
`
`
`v
`
`
`
`Consent Order Granting Permanent
`Injunctive Relief, Cellco Partnership
`d/b/a/ Verizon Wireless v. Plaza
`Resorts, Inc., Case No. 9:12-CV-81238-
`KAM (S.D. Fla. issued Sept. 15, 2014) .... 22-23
`
`
`Federal Commc’ns Comm’n, Consumer
`Complaints Data—Unwanted Calls
`(Feb. 6, 2020) .................................................. 18
`
`
`Federal Commc’ns Comm’n, In re Adrian
`Abramovich, Marketing Strategy
`Leaders, Inc., & Marketing Leaders,
`Inc., Forfeiture Order, File No. EB-
`TCD-15-00020488 (May 10, 2018) ........... 19, 21
`
`
`Federal Commc’ns Comm’n, In re
`Communications Marketplace Report,
`GN Docket No. 18-231, 2018 WL
`6839365 (rel. Dec. 26, 2018) ..................... 11, 16
`
`
`Federal Commc’ns Comm’n,
`Telecommunications Consumers
`Division—Enforcement Actions (Aug.
`13, 2019) .......................................................... 21
`
`
`Federal Trade Comm’n, Biennial Report to
`Congress Under the Do-Not-Call
`Registry Fee Extension Act of 2007
`(Dec. 2019) ................................................ 17-18
`
`
`Federal Trade Comm’n Blog, On the Do Not
`Call List But Still Getting Calls? Here’s
`What to Do Next…, (Aug. 28, 2018) .............. 26
`
`
`
`vi
`
`
`
`Matt Hamblen, Verizon pursues illegal
`autodialers, Computerworld (Apr. 28,
`2009)........................................................... 25\3
`
`
`In re Advanced Methods to Target and
`Eliminate Unlawful Robocalls, CG
`Docket No. 17-59, Second Report and
`Order, 33 FCC Rcd. 12024 (F.C.C. Dec.
`13, 2018) .......................................................... 30
`
`
`In re Advanced Methods to Target and
`Eliminate Unlawful Robocalls, CG
`Docket No. 17-59, Declaratory Ruling &
`Third Further Notice of Proposed
`Rulemaking, 2019 WL 2461905 (F.C.C.
`rel. June 7, 2019) ............................................ 20
`
`
`In re Advanced Methods to Target and
`Eliminate Unlawful Robocalls, CG
`Docket No. 17-59, Report and Order
`and Further Notice of Proposed
`Rulemaking, 32 FCC Rcd. 9706 (F.C.C.
`Nov. 17, 2017) ................................................. 30
`
`
`In re Cargo Airline Ass’n Petition for
`Expedited Declaratory Ruling, Rules &
`Regulations Implementing the Tel.
`Consumer Prot. Act of 1991, 29 FCC
`Rcd. 3432 (F.C.C. Mar. 27, 2014) ................... 15
`
`
`In re Rules and Regulations Implementing the
`Tel. Consumer Prot. Act of 1991, CG
`Docket No. 92-90, Report and Order, 7
`FCC Rcd. 8752 (F.C.C. Oct. 16, 1992) ........... 14
`
`
`
`vii
`
`
`
`In re Rules and Regulations Implementing the
`Tel. Consumer Prot. Act of 1991, CG
`Docket No. 02-278, Report and Order,
`18 FCC Rcd. 14014 (F.C.C. July 3,
`2003)................................................................ 29
`
`
`In re Rules and Regulations Implementing the
`Tel. Consumer Prot. Act of 1991, CG
`Docket No. 02-278, Report and Order,
`30 FCC Rcd. 7961 (F.C.C. July 10,
`2015)................................................ 4, 14-15, 29
`
`
`In re Rules and Regulations Implementing the
`Tel. Consumer Prot. Act of 1991, CG
`Docket No. 02-278, Report and Order,
`31 FCC Rcd. 9074 (F.C.C. Aug. 11,
`2016)................................................................ 14
`
`
`Letter of Christopher D. Oatway, Verizon, to
`J. Patrick Webre, Consumer &
`Governmental Affairs Bureau, Fed.
`Commc’ns Comm’n, Advanced Methods
`to Target and Eliminate Unlawful
`Robocalls, CG Docket No. 17-59; Call
`Authentication Trust Anchor, WC
`Docket No. 17-97 (filed Feb. 28, 2020) ........... 27
`
`
`Letter of Margot Saunders, National
`Consumer Law Center, to Marlene
`Dortch, Federal Commc’ns Comm’n,
`Notice of Ex Parte Presentation, CG
`Docket No. 02-278 (filed June 26, 2017) ........ 31
`
`
`
`
`
`
`viii
`
`
`
`Office of Info. & Reg. Affairs, Office of Mgmt.
`& Budget, In re Rules and Regulations
`Implementing the Tel. Consumer Prot.
`Act of 1991, CG Docket No. 02-278,
`Brief and OIRA Conclusion (Jan. 27,
`2017)................................................................ 15
`
`
`Doug Osborne, Verizon wins in lawsuit
`against auto warranty telemarketers,
`Geek.com (Apr. 29, 2009) ............................... 23
`
`
`Press Release, CTIA, CTIA Updates Messaging
`Principles and Best Practices to Further
`Protect Messaging from Spam, Updates
`Clarify Importance of Organizations
`Obtaining Opt-in Consent Prior to
`Messaging Consumers (July 19, 2019) .......... 29
`
`
`Pub. L. 102–243, § 2, 105 Stat. 2394 (1991) ............. 10
`
`Pub. L. No. 114-74, 129 Stat. 584 (2015) ...................9
`
`Pub. L. No. 116-105, § 4(b)(5)(C), 133 Stat. 3274
`
`(2019) .............................................................. 29
`
`Dan Rafter, Norton, Does the Do Not Call
`
`Registry work? ................................................ 26
`
`Statement of Michael J. Frawley, President of
`Gold Coast Paging, on behalf of
`Telocator Telemarketing/Privacy
`Issues: Hearing Before the Subcomm.
`On Telecommunications and Finance of
`the House Comm. On Energy and
`Commerce, 102d Cong., 1st Sess. (Apr.
`24, 1991) .......................................................... 13
`
`ix
`
`
`
`Statement of Steve Hamm, Administrator,
`South Carolina Department of
`Consumer Affairs, S. Hearing 102-960,
`S. 1462, The Automated Telephone
`Consumer Protection Act of 1991; S.
`140 The Telephone Advertising
`Protection Act; and S. 867, Equal
`Billing for Long Distance Charges,
`Hearing Before the Senate Subcomm.
`On Commerce, Science, and
`Transportation, 102d Cong., 1st Sess.
`(July 24, 1991) ................................................ 12
`
`
`Statement of Rep. Pallone, Section-by-Section
`Summary Pallone-Thune TRACED Act,
`Comm. On Energy & Commerce (Dec.
`2019)................................................................ 13
`
`
`Statement of Sen. Specter, Introduction of S.
`1719, 102d Cong. 1st Sess., 137 Cong.
`Rec. S13181-83 (daily ed. Sept. 17,
`1991)................................................................ 11
`
`
`Telemarketing Sales Rule, Fed. Reg. 4580
`(Jan. 29, 2003) ................................................ 22
`
`
`U.S. Dep’t of Health and Human Services,
`Centers for Disease Control and
`Prevention, National Center for Health
`Statistics, Wireless Substitution: Early
`Release of Estimates From the National
`Health Interview Survey, July-
`December 2018 (June 2019) ........................... 27
`
`
`
`
`
`
`x
`
`
`
`U.S. Government Accountability Office, Fake
`Caller ID Schemes: Information on
`Federal Agencies’ Efforts to Enforce
`Laws, Educate the Public, and Support
`Technical Initiatives (Dec. 2019) ............. 19, 20
`
`
`USTelecom’s Industry Traceback Group,
`Policies and Procedures (Jan. 2020) ........ 24-25
`
`
`USTelecom, State Attorneys General Anti-
`Robocall Principles, Principle No. 4............... 28
`
`
`YouMail Robocall Index, Historical Robocalls
`by Time, available at
`https://robocallindex.com/history/time/
`(accessed Feb. 12, 2020) ................................. 17
`
`
`
`
`xi
`
`
`
`INTEREST OF AMICI CURIAE1
`
`The Telephone Consumer Protection Act
`(TCPA) plays a critical role in protecting the country’s
`communications customers from being deluged by
`automated, unsolicited calls to mobile phones. Amici
`do not take a position with regard to the
`constitutionality of the specific exemption to the
`TCPA that is before the Court or the proper remedy
`to be adopted if that exemption is unconstitutional.
`Instead, Amici argue that there is a compelling
`interest sufficient to justify any narrow restrictions
`on speech inherent in protecting consumers and the
`communications
`network
`from
`such
`calls.
`Furthermore, the fact that the TCPA carves out, and
`authorizes the FCC to carve out, limited categories of
`calls from its prohibitions, along with appropriate
`protections to safeguard the privacy of persons called,
`does not per se undermine this compelling interest. A
`statute such as the TCPA necessarily balances
`customer privacy and network integrity against the
`need for certain important messages to get through to
`customers. Regardless of how the Court resolves this
`case, it should not undermine Congress’ ability to
`pass legislation reflecting these important interests.
`
`The National Consumer Law Center (NCLC) is
`a national research and advocacy organization
`focusing on justice in consumer financial transactions,
`especially for low-income and elderly consumers.
`Attorneys for NCLC have advocated extensively on
`
`
`1 Pursuant to Rule 37.6, Amici affirm that no counsel for
`a party authored this brief in whole or in part and that no person
`other than Amici and their counsel made a monetary
`contribution to its preparation or submission. The Respondent
`has filed a blanket permission for amicus briefs. A letter of
`consent from the Petitioner accompanies this brief.
`
`1
`
`
`
`behalf of consumers to protect their interests related
`to robocalls before the United States Congress, the
`Federal Communications Commission (FCC), and the
`federal courts. These activities have
`included
`testifying in numerous hearings before various
`congressional committees regarding how to control
`invasive and persistent robocalls, numerous filings
`and appearances before the FCC urging strong
`interpretations
`of
`the Telephone Consumer
`Protection Act (TCPA), and the filing of multiple
`amicus briefs before the federal courts of appeals
`representing the interests of consumers regarding the
`TCPA, as well as publishing and regularly updating a
`comprehensive analysis on the
`laws governing
`robocalls in National Consumer Law Center, Federal
`Deception Law, Chapter 6 (3d ed. 2017), updated at
`www.nclc.org/library.
`
`
`Verizon is a global leader delivering innovative
`communications and technology solutions. In the
`United States, Verizon’s award-winning wireless
`network affords its more than 100 million connected
`devices a fast, reliable network to make phone calls
`and consume ever-increasing amounts of data and
`video. Verizon makes extensive efforts to protect its
`customers from robocalls and text message spam. For
`example, Verizon has deployed a service called Call
`Filter to more than 50 million customers that helps
`identify and block unwanted robocalls. Verizon also
`is a founding member of a coalition of service
`providers led by its trade association, USTelecom,
`which assists law enforcement agencies in tracing
`illegal robocalls so that they can identify and
`prosecute the callers. Verizon’s efforts to protect its
`customers from robocalls would be significantly more
`difficult without the TCPA’s prohibitions on many
`types of autodialed calls.
`
`2
`
`
`
`The Consumer Federation of America (CFA) is
`an association of nearly 300 non-profit consumer
`organizations that was established in 1968 to advance
`the consumer interest through research, advocacy,
`and education. As a research organization, CFA
`investigates consumer issues, behavior, and attitudes
`through surveys, focus groups, investigative reports,
`economic analysis, and policy analysis. The findings
`of such research are published in reports that assist
`consumer advocates and policymakers as well as
`individual consumers. As an advocacy organization,
`CFA works to advance pro-consumer policies on a
`variety of issues before Congress, the White House,
`federal and state
`regulatory agencies, state
`legislatures, and the courts. As an educational
`organization, CFA disseminates
`information on
`consumer issues to the public and news media, as well
`as to policymakers and other public
`interest
`advocates. CFA has participated repeatedly
`in
`comments to the FCC on a wide variety of issues
`concerning the Telephone Consumer Protection Act
`and has made recommendations to the FCC regarding
`robocalls and other TCPA issues as a member of the
`FCC’s Consumer Advisory Council. Since it was
`formed, ensuring a fair marketplace has been a top
`priority for CFA.
`
`
`
`
`
`3
`
`
`
`SUMMARY OF ARGUMENT
`
`The Telephone Consumer Protection Act plays
`integral role
`in protecting
`the country’s
`an
`communications
`customers as well as
`the
`communications system from being deluged by
`automated, unsolicited calls to mobile phones. This
`represents a compelling interest sufficient to justify
`any narrow restrictions on speech inherent in
`protecting consumers and the communications
`network from such calls.
`
`Congress passed the Telephone Consumer
`Protection Act in 1991 to curtail the burgeoning
`problem of robocalling,2 which was then proliferating
`using relatively new autodialing technology. Through
`the TCPA, Congress sought to protect the interests of
`telephone consumers, businesses that relied on their
`phones, as well as the communications network itself.
`Among other things, the TCPA imposes particularly
`stringent limitations on calling cellular telephones,
`prohibiting almost all such calls made without the
`consent of the subscriber. While the TCPA permits
`the Federal Communications Commission (FCC or
`Commission) to allow exemptions to this prohibition
`on calls to cellular phones, these exemptions are
`constrained both by a requirement that they be
`limited to calls not charged to the end user and that
`such exceptions be “in the interest of the privacy
`rights” the statute was intended to protect. 47 U.S.C.
`§ 227(b)(2)(C).
`
`
`2 The FCC uses the term “robocall” to mean “calls made
`either with an automatic telephone dialing system (‘autodialer’)
`or with a prerecorded or artificial voice.” In re Rules and
`Regulations Implementing the Tel. Consumer Prot. Act of 1991,
`CG Docket No. 02-278, Report and Order, 30 FCC Rcd. 7961 n.1
`(F.C.C. July 10, 2015) [hereinafter 2015 TCPA Order].
`
`4
`
`
`
`legitimate calls made by
`In contrast to
`companies to their customers, the TCPA prohibition
`on
`robocalls
`to
`cellular
`subscribers without
`consent constitutes a critical protective measure that,
`if removed, would risk exponentially increasing the
`already large number of unwanted robocalls and
`rendering legitimate calls ineffective. The robocall
`outbreak that Congress sought to control with the
`TCPA in 1991 has grown into an epidemic as
`technological advances have made it easy and
`inexpensive for robocallers to make vast numbers of
`automated calls. Telephone users in the United
`States receive billions of autodialed calls monthly,
`including both calls that are in compliance with the
`TCPA, and calls that violate it. Many of the callers
`who make the calls do not just flout the TCPA but also
`hide from detection by changing the “calling party
`number” transmitted with their calls so that the calls
`appear to be coming from someone else. These
`autodialed calls often go beyond nuisance marketing
`to furthering dangerous scams such as impersonating
`personnel from the Internal Revenue Service or the
`Social Security Administration, thus imperiling the
`financial well-being of hundreds of millions of
`recipients. In addition to being a major consumer
`protection problem, the flood of illegal robocalls
`harms legitimate companies that use autodialers for
`calls their customers affirmatively want to receive,
`but that increasingly find that their contact rates are
`falling because of consumers’ wavering trust in
`incoming voice calls.
`
`The TCPA’s prohibition on robocalls to cellular
`subscribers without consent constitutes a critical
`check that, if removed, would likely cause the already
`large number of unwanted robocalls to surge.
`Multiple parties aggressively
`investigate and
`
`5
`
`
`
`thus
`this prohibition,
`prosecute violations of
`increasing incentives to comply with the law. And the
`provision undergirds promising efforts that industry,
`regulators, and law enforcement agencies have
`launched to turn the tide in consumers’ favor. The
`prohibition on robocalls is essential to identify likely-
`illegal traffic. Without it, industry programs to trace
`back suspicious traffic would be stymied, and it would
`be substantially harder for service providers and
`regulators to stanch unwanted robocalls (as well as
`bulk text messages) at the source with policies that
`ensure service providers do not help to originate such
`illegal traffic in the first place.
`
`For an illustration of what might befall cellular
`
`subscribers
`if
`the protections Congress has
`established for them were removed, the Court need
`look no further than the experiences of traditional
`landline phone customers. Residential telephone
`subscribers’ protections under the TCPA are much
`weaker than those of cellular customers: there is no
`restriction on autodialed calls to residential telephone
`numbers, and prerecorded calls are restricted only if
`made for telemarketing purposes. See 47 U.S.C.
`§ 227(b)(1)(B); 47 C.F.R. § 64.1200(a)(3). Verizon,
`which serves both cellular and residential customers,
`has confirmed that its average residential customer
`receives well over twice as many unwanted robocalls
`as its average wireless customer.
`
`The TCPA’s prohibition on most types of
`
`automated calls to cellular telephones without
`consent is essential to preserving both customer
`privacy and the integrity of the communications
`system in the United States. This constitutes a
`compelling interest justifying any restrictions on
`speech contained in the TCPA. Moreover, although
`
`6
`
`
`
`Amici do not, in this brief, take any position on the
`TCPA exemption at issue in this case, the fact that
`the TCPA does not prohibit every single non-
`consented-to, non-emergency call to cellular phones,
`and also allows the FCC to promulgate certain limited
`exemptions, does not on its own undermine this
`compelling interest. Not only are these exceptions
`limited to narrow circumstances, but there is no
`evidence that they have contributed materially to the
`explosion of robocalls or undermined the TCPA’s
`purpose. These minimal exceptions to the TCPA’s
`general protections do not in any way justify a ruling
`from this Court that would undermine Congress’
`ability to adopt the TCPA’s general prohibition on
`non-consented-to calls to cellular phones.
`
`
`ARGUMENT
`
` The Telephone Consumer Protection Act
`(TCPA), 47 U.S.C. § 227, and its implementing FCC
`rules, 47 C.F.R. § 64.1200, prohibit what Congress
`considered to be abusive methods of contacting
`consumers and businesses through their telephones.
`
`Congress adopted different rules for traditional
`residential wireline service than for what was, at the
`time, relatively new cellular telephone technology.
`For residential customers, Congress limited only calls
`using an artificial or prerecorded voice, 47 U.S.C.
`§ 227(b)(1)(B), as well as authorizing the FCC to set
`up a “do not call” list for customers who affirmatively
`
`
`
`7
`
`
`
`opt not to receive other types of telemarketing calls.3
`Congress did not, however, prohibit autodialed calls
`to landline residential phones. Moreover, the general
`statutory prohibition on unconsented-to calls using
`an artificial or prerecorded voice is currently limited
`by regulation to telemarketing calls. 47 C.F.R.
`§ 64.1200(a)(3).
`
`Congress adopted significantly more stringent
`protections for cellular telephones, as well as certain
`other critical phone lines such as “911” numbers,
`hospital emergency lines, physicians’ offices, police
`and fire departments, and poison control centers. For
`these, Congress prohibited making most types of non-
`emergency autodialed or prerecorded calls without
`the prior express consent of the called party. 47 U.S.C.
`§ 227(b)(1)(A); 47 C.F.R. § 64.1200(a)(1). Congress
`allowed the FCC to establish limited exemptions from
`this prohibition. While the FCC is permitted to
`exempt all non-commercial calls from the limits on
`prerecorded calls to residential lines, 47 U.S.C.
`§ 227(b)(1)(B), the Commission is permitted to allow
`unconsented-to automated calls to cellular phones
`only when they are not charged to the called party. 47
`U.S.C. § 227(b)(1)(C). Exemptions for automated calls
`to both residential lines and cell phones must be
`“subject to such conditions as the Commission may
`prescribe as necessary in the interest of the privacy
`rights this section is intended to protect.” Id.
`
`
`
`3 Callers violate the “do not call” rules by making any
`type of telemarketing call to registered residential lines or
`cellphones. 47 C.F.R. § 64.1200(e). Telemarketing calls are
`covered whether they are made using a prerecorded or artificial
`voice, an automated dialer, or even if the call is manually dialed.
`47 C.F.R. § 64.1200(c)(2).
`
`8
`
`
`
`The 2015 Appropriations Act (referred to as the
`Budget Act Amendment) amended the prohibitions
`applicable to both residential and cellular customers
`to exclude calls made solely to collect a debt owed to
`or guaranteed by the United States. 47 U.S.C.
`§ 227(b)(1)(A), (B), as amended by Bipartisan Budget
`Act of 2015, Pub. L. No. 114-74, 129 Stat. 584 (2015)
`[hereinafter Budget Act]. As this case challenges only
`the prohibitions on making autodialed calls to cellular
`customers, this brief focuses on the importance of the
`TCPA’s restrictions on those calls.
`
`THE TCPA’S PROHIBITION ON NON-
`CONSENSUAL AUTOMATED CALLS TO
`CELLULAR
`CUSTOMERS
`PROTECTS
`CONSUMER
`PRIVACY,
`INTERSTATE
`COMMERCE,
`AND
`THE NATION’S
`TELECOMMUNICATIONS SYSTEM.
`
`I.
`
`The prohibition on autodialed calls to cellular
`telephones advances three critical societal interests.
`First, it protects individual consumers from invasion
`into their privacy and the costs associated with
`receiving numerous unwanted calls. Second,
`it
`protects businesses and the public safety system that
`use
`cell phones as a primary means
`of
`communications from having their lines clogged with
`uninvited calls. And third, it helps to maintain the
`integrity of the nation’s telephone system.
`
`A.
`
`Congress Intended the TCPA to Protect
`Consumers’ Privacy from Unwanted
`Calls.
`
`The congressional findings accompanying the
`TCPA repeatedly stress the purpose of protecting
`consumers’ privacy against the
`intrusion and
`nuisance caused by the calls:
`
`9
`
`
`
`telemarketing,
`(5) Unrestricted
`however, can be an intrusive
`invasion of privacy and, when an
`emergency or medical assistance
`telephone line is seized, a risk to
`public safety.
`
`(6) Many consumers are outraged
`over the proliferation of intrusive,
`nuisance calls to their homes from
`telemarketers.
`
`***
`
` (9)
`
`Individuals’ privacy rights, public
`safety interests, and commercial
`freedoms of speech and trade
`must be balanced in a way that
`protects the privacy of individuals
`and
`permits
`legitimate
`telemarketing practices.
`
`Pub. L. 102–243, § 2, 105 Stat. 2394 (1991) (emphasis
`added). Congress concluded that the only effective
`way to protect people from these unwanted and
`intrusive calls was to require prior consent for the
`automated calls:
`
`(12) Banning such automated or
`prerecorded telephone calls to the
`home, except when the receiving
`party consents to receiving the
`call or when such calls are
`necessary in an emergency
`situation affecting the health and
`safety of the consumer, is the only
`effective means of protecting
`telephone consumers from this
`nuisance and privacy invasion.
`
`Id.
`
`10
`
`
`
`The privacy goals Congress articulated thirty
`years ago are even more applicable to the cellular
`phones today when cell phones are ubiquitous. See
`Federal Commc’ns Comm’n, In re Communications
`Marketplace Report, GN Docket No. 18-231, 2018 WL
`6839365, at *4 ¶ 8 (rel. Dec. 26, 2018) [hereinafter
`Communications Marketplace Report]. Cellular
`subscribers take their cell phones with them
`wherever they go, and without restrictions on
`autodialing consumers run the risk of being
`bombarded with robocalls at all times and in all
`places.
`
`B.
`
`Businesses Are Also Protected from
`Automated Calls Made Without
`Consent.
`
`Congress recognized that businesses using
`
`both traditional wireline as well as cellular phones
`are harmed by these unwanted and intrusive calls. As
`Senator Specter stated, “many businesses are called
`by the telemarketers, making their work lines
`unreachable to the public and affecting the owner’s
`ability to effectively run his business.” Statement of
`Sen. Specter, Introduction of S. 1719, 102d Cong. 1st
`Sess., 137 Cong. Rec. S13181-83 (daily ed. Sept. 17,
`1991). A state government witness before the
`committee considering the TCPA similarly testified:
`
` .
`
` . . I have received calls from some of the
`largest businesses within the State of
`South Carolina complaining that their
`phone lines, through the sequential and
`programmed calling moving through
`their offices, tying up their business
`lines and tying up their staff listening to
`calls, and you may want to consider
`
`11
`
`
`
`whether or not the business community
`indeed wants to receive these calls.
`
`Statement of Steve Hamm, Administrator, South
`Carolina Department of Consumer Affairs, S.
`Hearing 102-960, S. 1462, The Automated Telephone
`Consumer Protection Act of 1991; S. 140 The
`Telephone Advertising Protection Act; and S. 867,
`Equal Billing for Long Distance Charges, Hearing
`Before the Senate Subcomm. On Commerce, Science,
`and Transportation, 102d Cong., 1st Sess. (July 24,
`1991) (emphasis added).
`
`
`C.
`
`The TCPA Protects the Integrity of the
`Nation’s Telecommunications System.
`
`nation’s
`the
`that
`found
`Congress
`communication systems and providers were also
`negatively impacted by the explosion of automated
`calls before the TCPA was adopted. As the head of a
`paging provider testified:
`
`It is really rough when you come to work
`every day with the objective of giving
`service when
`you have
`outside
`influences that can alter that objective.
`When I say outside influences, I’m
`talking about autodialers that seize up
`our blocks of numbers. For example, I
`have 10,000 numbers in a 363 exchange,
`and if an autodialer gets into that 363
`exchange and attacks numbers in 100
`groups, it can tie up that exchange and
`impede the service to all of my
`customers. The Coast Guard, national
`defense organizations, police, fire
`department, hospitals, doctors, you
`
`12
`
`
`
`name it; they’re all affected. Now, this
`has been a problem for many years.
`
`Statement of Michael J. Frawley, President of Gold
`Coast
`Paging,
`on
`behalf
`of
`Telocator
`Telemarketing/Privacy Issues: Hearing Before the
`Subcomm. On Telecommunications and Finance of
`the House Comm. On Energy and Commerce, 102d
`Cong., 1st Sess. (Apr. 24, 1991) (emphasis added).
`
`Indeed, Congress recently reiterated the need
`
`for the TCPA’s restrictions against automated calls to
`cell phones as necessary to maintain trust in the
`communications system:
`
`The rising tide of illegal robocalls has
`quickly turned from a nuisance to a real
`threat on the way we all view and use
`our telephones.
`.
`. These calls all
`undermine the public’s trust in our
`phone system.
`
`Statement of Rep. Pallone, Section-by-Section
`Summary Pallone-Thune TRACED Act, Comm. On
`Energy & Commerce (Dec. 2019), available at
`https://republicans-energycommerce.house.gov/wp-
`content/uploads/2019/12/Pallone-Thune-TRACED-
`Act-Section-by-Section.pdf.
`
`
`D.
`
`Limited Exceptions to the Prohibition on
`Unconsented-to Calls to Cell Phones Are
`Not Inconsistent with the TCPA’s
`Purpose.
`
`The TCPA sought to protect these important
`
`interests by prohibiting nearly all autodialed calls to
`cellular phones without the consent of the subscrib
Accessing this document will incur an additional charge of $.
After purchase, you can access this document again without charge.
Accept $ Charge
Still Working On It
This document is taking longer than usual to download. This can happen if we need to contact the court directly to obtain the document and their servers are running slowly.
Give it another minute or two to complete, and then try the refresh button.
A few More Minutes ... Still Working
It can take up to 5 minutes for us to download a document if the court servers are running slowly.
Thank you for your continued patience.
This document could not be displayed.
We could not find this document within its docket. Please go back to the docket page and check the link. If that does not work, go back to the docket and refresh it to pull the newest information.
Your account does not support viewing this document.
You need a Paid Account to view this document. Click here to change your account type.
Your account does not support viewing this document.
Set your membership
status to view this document.
With a Docket Alarm membership, you'll
get a whole lot more, including:
- Up-to-date information for this case.
- Email alerts whenever there is an update.
- Full text search for other cases.
- Get email alerts whenever a new case matches your search.
One Moment Please
The filing “” is large (MB) and is being downloaded.
Please refresh this page in a few minutes to see if the filing has been downloaded. The filing will also be emailed to you when the download completes.
Your document is on its way!
If you do not receive the document in five minutes, contact support at support@docketalarm.com.
Sealed Document
We are unable to display this document, it may be under a court ordered seal.
If you have proper credentials to access the file, you may proceed directly to the court's system using your government issued username and password.
Access Government Site
