No. 19-631
`In the
`Supreme Court of the United States
`
`
`
`
`WILLIAM P. BARR, ATTORNEY GENERAL;
`FEDERAL COMMUNICATIONS COMMISSION,
`Petitioners,
`
`
`
`v.
`AMERICAN ASSOCIATION OF POLITICAL
`CONSULTANTS, INC., ET AL.,
`Respondents.
`
`
`
`ON WRIT OF CERTIORARI
`TO THE UNITED STATES COURT OF APPEALS
`FOR THE FOURTH CIRCUIT
`
`
`
`BRIEF FOR RESPONDENTS
`
`
`
`ROMAN MARTINEZ
` Counsel of Record
`ANDREW B. CLUBOK
`SUSAN E. ENGEL
`TYCE R. WALTERS
`SAMIR DEGER-SEN
`GREGORY B. IN DEN BERKEN
`LATHAM & WATKINS LLP
`555 Eleventh Street, NW
`Suite 1000
`Washington, DC 20004
`(202) 637-2200
`roman.martinez@lw.com
`Counsel for Respondents
`
`
`WILLIAM E. RANEY
`KELLIE MITCHELL BUBECK
`COPILEVITZ, LAM &
` RANEY, P.C.
`310 W. 20th Street
`Suite 300
`Kansas City, MO 64108
`(816) 472-9000
`
`
`
`
`
`In the
`Supreme Court of the United States
`
`
`
`
`WILLIAM P. BARR, ATTORNEY GENERAL;
`FEDERAL COMMUNICATIONS COMMISSION,
`Petitioners,
`
`
`
`v.
`AMERICAN ASSOCIATION OF POLITICAL
`CONSULTANTS, INC., ET AL.,
`Respondents.
`
`
`
`ON WRIT OF CERTIORARI
`TO THE UNITED STATES COURT OF APPEALS
`FOR THE FOURTH CIRCUIT
`
`
`
`BRIEF FOR RESPONDENTS
`
`
`
`ROMAN MARTINEZ
` Counsel of Record
`ANDREW B. CLUBOK
`SUSAN E. ENGEL
`TYCE R. WALTERS
`SAMIR DEGER-SEN
`GREGORY B. IN DEN BERKEN
`LATHAM & WATKINS LLP
`555 Eleventh Street, NW
`Suite 1000
`Washington, DC 20004
`(202) 637-2200
`roman.martinez@lw.com
`Counsel for Respondents
`
`
`WILLIAM E. RANEY
`KELLIE MITCHELL BUBECK
`COPILEVITZ, LAM &
` RANEY, P.C.
`310 W. 20th Street
`Suite 300
`Kansas City, MO 64108
`(816) 472-9000
`
`
`
`
`
`
`i
`QUESTION PRESENTED
`The Telephone Consumer Protection Act (TCPA)
`imposes liability of up to $1,500 for any call or text
`message made or sent without prior express consent
`to a cellphone using an automatic telephone dialing
`system or an artificial or prerecorded voice. That
`broad prohibition on speech, however, is subject to a
`host of exceptions, including for calls made “to collect
`a debt owed to or guaranteed by the United States,”
`calls by the government itself, and calls advancing
`various government-approved messages.
`In the decision below, the Fourth Circuit
`recognized that the TCPA’s restriction on speech is
`content-based and not narrowly tailored to any
`compelling government interest. Accordingly, the
`court held that the statute violates the First
`Amendment. But instead of invalidating the TCPA’s
`ban on speech, the court took the extraordinary step
`of rewriting the statute to prohibit more speech.
`Specifically, the Fourth Circuit purported to fix the
`constitutional defect by striking the government-debt
`exception from the statute, while leaving all of the
`statute’s unconstitutional speech restrictions—and
`all of its other exceptions—intact.
`The question presented is:
`Whether the TCPA’s cellphone-call prohibition is
`an unconstitutional content-based restriction of
`speech, and if so whether the Fourth Circuit erred in
`addressing the constitutional violation by broadening
`the prohibition to abridge more speech.
`
`
`
`
`
`
`ii
`RULE 29.6 STATEMENT
`Respondent Public Policy Polling, LLC has no
`parent corporation, and no publicly held company
`owns 10 percent or more of its stock. The remaining
`respondents are nonprofit organizations.
`
`
`
`iii
`TABLE OF CONTENTS
`
`Page
`QUESTION PRESENTED ......................................... i
`RULE 29.6 STATEMENT .......................................... ii
`TABLE OF AUTHORITIES ...................................... v
`INTRODUCTION ...................................................... 1
`STATEMENT OF THE CASE ................................... 3
`A. Statutory and Regulatory Background .......... 3
`B. Factual and Procedural Background ............ 10
`SUMMARY OF THE ARGUMENT ......................... 13
`ARGUMENT ............................................................ 16
`I. THE TCPA’S CELLPHONE-CALL BAN
`VIOLATES THE FIRST AMENDMENT ........... 16
`A. The Cellphone-Call Ban Is Content-Based .. 16
`B. The Cellphone-Call Ban Fails Strict
`Scrutiny ......................................................... 25
`C. The Cellphone-Call Ban Would Also Fail
`Intermediate Scrutiny ................................... 30
`II. THE CELLPHONE-CALL BAN MUST BE
`STRUCK DOWN ................................................. 33
`A. Unconstitutional Speech Restrictions Must
`Be Invalidated ............................................... 34
`1. Striking Down Exceptions Does Not
`Remedy The First Amendment Injury .... 34
`2. Striking Down Exceptions Undermines
`Core Constitutional Values ..................... 37
`
`
`
`iv
`TABLE OF CONTENTS—Continued
`Page
`
`3. This Court Uniformly Invalidates
`Speech Restrictions, Not Exceptions ....... 39
`4. The Government’s Contrary
`Arguments Lack Merit ............................. 43
`B. As Rewritten By The Fourth Circuit, The
`Cellphone-Call Ban Still Violates The First
`Amendment ................................................... 51
`CONCLUSION ......................................................... 53
`
`
`
`
`
`
`v
`TABLE OF AUTHORITIES
`
`Page(s)
`
`44 Liquormart, Inc. v. Rhode Island,
`517 U.S. 484 (1996) ........................................ 31, 32
`Arkansas Writers’ Project, Inc. v. Ragland,
`481 U.S. 221 (1987) ............................ 23, 37, 40, 50
`
`Brown v. Entertainment Merchants
`Association,
`564 U.S. 786 (2011) ........................................ 26, 36
`Carey v. Brown,
`447 U.S. 455 (1980) .............................................. 46
`
`Central Hudson Gas & Electric Corp. v.
`Public Service Commission of New York,
`447 U.S. 557 (1980) .............................................. 24
`
`City of Cincinnati v. Discovery Network,
`Inc.,
`507 U.S. 410 (1993) ........................................ 33, 42
`City of Ladue v. Gilleo,
`512 U.S. 43 (1994) ........................ 16, 28, 32, 36, 52
`
`Comptroller of the Treasury of Maryland v.
`Wynne,
`135 S. Ct. 1787 (2015) .......................................... 45
`Edenfield v. Fane,
`507 U.S. 761 (1993) .............................................. 31
`First National Bank of Boston v. Bellotti,
`435 U.S. 765 (1978) .............................................. 42
`
`
`
`
`
`vi
`TABLE OF AUTHORITIES—Continued
`Page(s)
`
`Florida. v. Jardines,
`569 U.S. 1 (2013) .................................................. 27
`
`Free Enterprise Fund v. Public Co.
`Accounting Oversight Board,
`561 U.S. 477 (2010) .................................. 34, 35, 44
`Frost v. Corp. Commissionn of Oklahoma,
`278 U.S. 515 (1929) .............................................. 45
`Glasser v. Hilton Grand Vacations Co.,
`948 F.3d 1301 (11th Cir. 2020) ............................ 29
`
`Greater New Orleans Broadcasting
`Association v. United States,
`527 U.S. 173 (1999) .................................. 42, 49, 50
`INS v. Chadha,
`462 U.S. 919 (1983) ........................................ 34, 44
`Kirkeby v. Furness,
`92 F.3d 655 (8th Cir. 1996) .................................. 26
`Lambert v. Seminole County School Board,
`No. 6:15-cv-78-Orl-18DAB, 2016 WL
`9453806 (M.D. Fla. Jan. 21, 2016) ........................ 4
`Lucia v. SEC,
`138 S. Ct. 2044 (2018) .......................................... 38
`Marks v. Crunch San Diego, LLC,
`904 F.3d 1041 (9th Cir. 2018) .............................. 29
`
`
`
`vii
`TABLE OF AUTHORITIES—Continued
`Page(s)
`
`Martin v. City of Struthers,
`319 U.S. 141 (1943) .............................................. 26
`McCullen v. Coakley,
`573 U.S. 464 (2014) .............................................. 26
`Metromedia, Inc. v. City of San Diego,
`453 U.S. 490 (1981) ........................................ 31, 36
`
`Minnesota Star & Tribune Co. v. Minnesota
`Commissioner of Revenue,
`460 U.S. 575 (1983) .............................................. 42
`Morse v. Frederick,
`551 U.S. 393 (2007) .............................................. 10
`
`Murphy v. National Collegiate Athletic
`Association,
`138 S. Ct. 1461 (2018) .......................................... 38
`Police Deparment of Chicago v. Mosley,
`408 U.S. 92 (1972) ................................................ 46
`R.A.V. v. City of St. Paul,
`505 U.S. 377 (1992) .................................. 16, 35, 36
`Rappa v. New Castle County,
`18 F.3d 1043 (3d Cir. 1994) ..................... 37, 47, 48
`Reed v. Town of Gilbert,
`135 S. Ct. 2218 (2015) .................................. passim
`Republican Party of Minnesota v. White,
`536 U.S. 765 (2002) .............................................. 28
`
`
`
`viii
`TABLE OF AUTHORITIES—Continued
`Page(s)
`
`Rubin v. Coors Brewing Co.,
`514 U.S. 476 (1995) ........................................ 32, 33
`Sessions v. Morales-Santana,
`137 S. Ct. 1678 (2017) .......................................... 45
`Sorrell v. IMS Health, Inc.,
`564 U.S. 552 (2011) .................................. 26, 35, 42
`Thomas v. Chicago Park District,
`534 U.S. 316 (2002) .............................................. 19
`Turner Broadcasting Systems, Inc. v. FCC,
`512 U.S. 622 (1994) ........................................ 19, 51
`
`United States v. Playboy Entertainment
`Group, Inc.,
`529 U.S. 803 (2000) ........................................ 16, 25
`United States v. Virginia,
`518 U.S. 515 (1996) .............................................. 31
`Ward v. Rock Against Racism,
`491 U.S. 781 (1989) .............................................. 30
`Williams-Yulee v. Florida Bar,
`575 U.S. 433 (2015) .............................................. 36
`
`
`
`ix
`TABLE OF AUTHORITIES—Continued
`Page(s)
`ADMINISTRATIVE PROVISIONS
`
`Cargo Airline Association Petition for
`Expedited Declaratory Building Rules
`and Regulations Implementing the
`Telephone Consumer Protection Act of
`1991, 29 FCC Rcd. 3432 (2014) ............................. 7
`
`Rules and Regulations Implementing the
`Telephone Consumer Protection Act of
`1991, 7 FCC Rcd. 8752 (1992) ............... 5, 7, 27, 52
`
`Rules and Regulations Implementing the
`Telephone Consumer Protection Act of
`1991, 18 FCC Rcd. 14,014 (2003) ................ 5, 7, 28
`
`Rules and Regulations Implementing the
`Telephone Consumer Protection Act of
`1991, 23 FCC Rcd. 559 (2008). ........................ 6, 28
`
`Rules and Regulations Implementing the
`Telephone Consumer Protection Act of
`1991, 27 FCC Rcd. 1830 (2012) ....................... 6, 28
`
`Rules and Regulations Implementing the
`Telephone Consumer Protection Act of
`1991, 30 FCC Rcd. 7961 (2015) ....................... 7, 10
`
`Rules and Regulations Implementing the
`Telephone Consumer Protection Act of
`1991, 31 FCC Rcd. 7394 (2016) ....................... 4, 19
`
`
`
`x
`TABLE OF AUTHORITIES—Continued
`Page(s)
`
`Rules and Regulations Implementing the
`Telephone Consumer Protection Act of
`1991, 31 FCC Rcd. 9074 (2016) ................... passim
`Telephone Consumer Protection Act of 1991,
`Notice of Proposed Rulemaking, 7 FCC
`Rcd. 2736 (1992) ........................................... 4, 5, 27
`CONSTITUTIONAL, STATUTORY AND
`REGULATORY PROVISIONS
`U.S. Const. amend. I ........................................... 35, 46
`2 U.S.C. § 1608 .......................................................... 48
`7 U.S.C. § 2626 .......................................................... 48
`15 U.S.C. § 715k ........................................................ 48
`22 U.S.C. § 1644 ........................................................ 48
`42 U.S.C. § 1303 ........................................................ 48
`47 U.S.C. § 153(39) ...................................................... 4
`47 U.S.C. § 227(a) ........................................................ 6
`47 U.S.C. § 227(b) .............................................. passim
`47 U.S.C. § 227(g) ........................................................ 9
`47 U.S.C. § 608 .............................................. 47, 48, 50
`
`
`
`xi
`TABLE OF AUTHORITIES—Continued
`Page(s)
`50 U.S.C. § 3076 ........................................................ 48
`Pub. L. No. 102-243, 105 Stat. 2394 (1991)............ 4, 5
`Pub. L. No. 102-556, 106 Stat. 4181 (1992)................ 7
`Pub. L. No. 116-105, 133 Stat. 3274 (2019).............. 49
`47 C.F.R. § 64.1200(a)(3) ............................................ 5
`81 Fed. Reg. 80,603 (Nov. 16, 2016) ........................... 8
`OTHER AUTHORITIES
`Center for Microeconomic Data, Federal
`Reserve Bank of New York, Quarterly
`Report on Household Debt and Credit
`(Nov. 2019),
`https://www.newyorkfed.org/medialibrar
`y/interactives/householdcredit/data/pdf/
`hhdc_2019q3.pdf .................................................... 9
`FCC, The FCC’s Push to Combat Robocalls
`& Spoofing, https://www.fcc.gov/about-
`fcc/fcc-initiatives/fccs-push-combat-
`robocalls-spoofing (last visited Mar. 22,
`2020) ..................................................................... 49
`Federal Student Aid, U.S. Dep’t of Educ.,
`Portfolio by Loan Status (DL, FFEL,
`ED-Held FFEL, ED-Owned),
`https://studentaid.gov/data-
`center/student/portfolio (last visited
`Mar. 22, 2020) ........................................................ 9
`
`
`
`xii
`TABLE OF AUTHORITIES—Continued
`Page(s)
`
`Justin (Gus) Hurwitz, Telemarketing,
`Technology, and the Regulation of
`Private Speech: First Amendment
`Lessons from the FCC’s TCPA Rules, 84
`Brook. L. Rev. 1 (2018) .............................. 8, 27, 29
`Daniel Kling & Thomas Stratmann, The
`Efficacy of Political Advertising: A Voter
`Participation Field Experiment with
`Multiple Robo Calls and Controls for
`Selection Effects, GMU Working Paper
`in Economics No. 16-31 (Aug. 4, 2016),
`https://ssrn.com/abstract=2818182 ..................... 11
`Letter from Consumer Financial Protection
`Bureau to FCC (June 6, 2016),
`https://ecfsapi.fcc.gov/file/60002112663.
`pdf ........................................................................... 9
`Letter from Sen. Edward J. Markey et al. to
`Ajit Pai (FCC Chairman) (June 15,
`2018),
`https://www.markey.senate.gov/imo/med
`ia/doc/Letter%20--%20Federal%20
`Debt%20Collectors%206-15-18.pdf ..................... 21
`S. Rep. No. 102-178 (1991), reprinted in
`1991 U.S.C.C.A.N. 1968 .................................... 4, 6
`
`
`
`xiii
`TABLE OF AUTHORITIES—Continued
`Page(s)
`
`U.S. Dep’t of Treasury, Fiscal Year 2018
`Report to the Congress: U.S.
`Government Receivables and Debt
`Collection Activities of Federal Agencies
`(Aug. 2019),
`https://fiscal.treasury.gov/files/dms/
`debt18.pdf ........................................................... 8, 9
`
`
`
`
`
`
`INTRODUCTION
`Three fundamental legal principles resolve this
`case. First, a statute is content-based if it “target[s]
`speech based on its communicative content.” Reed v.
`Town of Gilbert, 135 S. Ct. 2218, 2226 (2015). Second,
`a content-based speech restriction can survive
`constitutional scrutiny only if it is the least restrictive
`means of furthering a compelling interest. And third,
`a law that abridges speech in violation of the First
`Amendment—particularly core political speech—
`must be invalidated.
`The TCPA imposes a ban on certain types of
`automated calls made to residential landlines and
`cellphones. But whereas the residential-call ban
`authorizes broad exemptions for all non-commercial
`and non-telemarketing calls, the cellphone-call ban
`does not incorporate those exemptions and instead
`bars any calls made using an automatic telephone
`dialing system or featuring artificial or prerecorded
`voices. 47 U.S.C. § 227(b)(1)(A)(iii) (the “cellphone-
`call restriction”).
`This sweeping restriction on cellphone calls is,
`however, subject to multiple content- and speaker-
`based exemptions created by Congress and the
`Federal Communications Commission (FCC). Most
`prominently, Congress exempted from the scope of
`the cellphone-call restriction all calls made “solely to
`collect a debt owed to or guaranteed by the United
`States.”
` Id. (the “government-debt exception”).
`Under that exception, private debt collectors are free
`to make automated calls to the vast number of
`Americans with government-backed student loans,
`mortgages, farm loans, or veterans loans, so long as
`their discussion remains confined to a particular
`
`
`
`
`
`2
`topic—but are subject to ruinous financial penalties if
`the subject-matter of the call departs from that topic.
`The TCPA also exempts calls made by government
`speakers
`(including
`federal, state, and
`local
`governments, and even federal contractors), and, by
`regulation,
`calls
`delivering
`drug-prescription
`notifications, package-delivery notices, and messages
`about money transfers. Once again, the scope of the
`statute’s penalties turns on whether the subject-
`matter of the call is confined to the exempted topics.
`Because the cellphone-call restriction is content-
`and speaker-based, it can survive only by satisfying
`strict scrutiny.
` The Government has wisely
`abandoned any argument that the restriction meets
`that test. And even if the cellphone-call ban were
`content-neutral—and
`thus
`subject
`only
`to
`intermediate scrutiny—it would still violate the First
`Amendment, because its sweeping restrictions are
`hopelessly ill-tailored to the Government’s asserted
`interest
`in protecting privacy
`from unwanted
`communications. Indeed, Congress and the FCC have
`repeatedly indicated that the privacy interests
`protected by the TCPA do not justify restrictions on
`the kinds of non-commercial and non-telemarketing
`calls covered by the cellphone-call provision.
`The Fourth Circuit thus rightly held that the
`cellphone-call
`restriction
`violates
`the First
`Amendment. Inexplicably, though, the court declined
`to follow this Court’s standard practice and invalidate
`that restriction. Instead, it purported to “sever” the
`government-debt exception, judicially expanding the
`scope of the restriction and outlawing speech that
`Congress deliberately exempted from regulation.
`
`
`
`3
`That result runs counter to basic constitutional
`principles and would wreak havoc on First
`Amendment jurisprudence more broadly. When a
`content-based restriction on speech violates the First
`Amendment, the proper remedy is to invalidate that
`restriction—not a speech-promoting exception. That
`rule follows from the text of the First Amendment,
`which forbids only laws “abridging the freedom of
`speech”—not exceptions that freely permit speech.
`This Court has always struck down content-based
`speech restrictions that fail constitutional scrutiny,
`and has never struck down a speech-promoting
`exception or conducted the sort of “severability”
`analysis the Government proposes here. And even if
`such an analysis were permissible
`in First
`Amendment cases, severing the exception would
`nonetheless be inappropriate in this case, because the
`judicially-rewritten statute is still unconstitutional.
`The Government offers no good reason to abandon
`settled First Amendment principles and create a
`brand-new
`“severability” doctrine
`that would
`encourage
`judges
`to expand unlawful speech
`restrictions. Automated calls may be unpopular, but
`so are many types of speech protected by the First
`Amendment. This Court should invalidate the
`cellphone-call ban and let Congress, the FCC, and the
`private sector address the challenges posed by
`automated calls
`in ways consistent with the
`Constitution.
`STATEMENT OF THE CASE
`A. Statutory and Regulatory Background
`1. Congress enacted the TCPA in 1991 to respond
`to concerns arising from the advent of automatic-
`dialing technology. According to the FCC, the
`
`
`
`4
`statute’s “overall intent” was “to protect consumers
`from unrestricted
`telemarketing.”
` Telephone
`Consumer Protection Act of 1991, Notice of Proposed
`Rulemaking (1992 NPRM), 7 FCC Rcd. 2736, 2737
`(1992); see also S. Rep. No. 102-178, at 1 (1991) (1991
`Senate Report). Although automated calls were
`generally deemed “a nuisance and an invasion of
`privacy,” Congress recognized that such calls also
`implicated the First Amendment and therefore need
`not be prohibited entirely. Pub. L. No. 102-243,
`§ 2(13), 105 Stat. 2394, 2395 (1991).
`The TCPA prohibits various types of calls to
`residential landlines, cellular phones, fax machines,
`and other specialized lines. See 47 U.S.C. § 227(b)(1).
`Those prohibitions apply generally to members of the
`public, but not to government entities, federal
`contractors, or state and local governments. See id.
`(applying restriction to “person[s]”); id. § 153(39)
`(defining “person”); see also Rules and Regulations
`Implementing the Telephone Consumer Protection Act
`of 1991 (TCPA Rules and Regulations), 31 FCC Rcd.
`7394, 7395-96, 7398-99 (2016) (June 2016 Order)
`(federal contractors); Lambert v. Seminole Cty. Sch.
`Bd., No. 6:15-cv-78-Orl-18DAB, 2016 WL 9453806, at
`*2 (M.D. Fla. Jan. 21, 2016); Gov’t Br. 29.
`a. The TCPA’s flagship provision categorically
`bans calls made without prior consent to residential
`phones using an artificial or prerecorded voice. 47
`U.S.C. § 227(b)(1)(B). But Congress believed that
`only a subset of those residential calls would so
`infringe personal privacy as to justify an absolute
`ban. It therefore authorized the FCC to exempt all
`“calls that are not made for a commercial purpose,” as
`well as those “classes or categories” of commercial
`calls that “will not adversely affect” privacy rights and
`
`
`
`5
`“do not include the transmission of any unsolicited
`advertisement.” Id. § 227(b)(2)(B); see also 105 Stat.
`at 2395 (FCC should have “flexibility to design
`different rules” for calls “not considered a nuisance or
`invasion of privacy, or for noncommercial calls,
`consistent with the free speech protections embodied
`in the First Amendment”).
`In 1992, the FCC exercised this authority by
`exempting residential calls “where the record
`demonstrates that the calls do not adversely affect the
`privacy interests of residential subscribers”—namely,
`“non-commercial
`calls,
`commercial
`calls not
`transmitting an unsolicited advertisement, . . . and
`calls
`from tax-exempt nonprofit organizations.”
`TCPA Rules and Regulations, 7 FCC Rcd. 8752, 8782
`(1992) (1992 Order); see 47 C.F.R. § 64.1200(a)(3). In
`doing so, the FCC affirmed that such non-
`telemarketing calls are “valuable” to consumers and
`“do not constitute a risk to public safety or an undue
`burden on privacy interests.” 1992 NPRM 2737. The
`FCC specifically highlighted the value of calls by
`“political
`campaigns”
`or
`involving
`“political
`contributions and elections,” noting that they “fall
`outside of the types of commercial telemarketing
`activity the TCPA seeks to regulate.” Id.; see also
`1992 Order 8774 (stating that calls to residences by
`“market research or polling organizations” are “not
`invasive of residential privacy rights and were not
`intended to be prohibited by the TCPA”).
`Since then, the FCC has repeatedly reaffirmed
`that political and other non-commercial calls—as well
`non-telemarketing commercial calls—“do not tread
`heavily upon the consumer interests implicated by
`the TCPA,” TCPA Rules and Regulations, 18 FCC
`Rcd. 14,014, 14,095 (2003) (2003 Order), and should
`
`
`
`6
`therefore remain categorically exempt from the
`residential call ban, TCPA Rules and Regulations, 27
`FCC Rcd. 1830, 1841 (2012) (2012 Order); TCPA
`Rules and Regulations, 23 FCC Rcd. 559, 561 (2008)
`(2008 Order).
`b. The TCPA also includes a ban on calls to
`cellphones—the restriction directly at issue in this
`case.
` That cellphone-call restriction makes it
`“unlawful for any person within the United States” to
`make any call to a cellphone without prior consent
`using “any automatic telephone dialing system
`[ATDS] or an artificial or prerecorded voice.” 47
`U.S.C. § 227(b)(1)(A)(iii).1
`Congress made the cellphone-call ban significantly
`broader than the parallel residential-call ban. Most
`notably, the cellphone provision extends to calls using
`an ATDS device
`(not merely to artificial or
`prerecorded calls), and it does not specifically
`authorize
`exceptions
`for non-commercial
`or
`commercial, non-telemarketing calls.
`These distinctions reflect the fact that at the time
`the TCPA became law, most cellular providers
`charged the recipient for calls made to cellphones.
`Because such calls “impose[d] a cost on the called
`party,” 1991 Senate Report at 2, Congress chose to
`regulate such calls far more stringently than
`residential calls. See 47 U.S.C. § 227(b)(1)(A)(iii)
`(embedding cellphone-call restriction in provision
`banning calls to “any service for which the called
`
`1 The TCPA defines an automatic telephone dialing
`system as “equipment which has the capacity . . . to store or
`produce telephone numbers to be called, using a random or
`sequential number generator; and . . . to dial such numbers.” 47
`U.S.C. § 227(a)(1).
`
`
`
`7
`party is charged for the call”); 2003 Order 14,092,
`14,115 (noting that calls to cellphones are “costly” and
`“inappropriately shift marketing costs from sellers to
`consumers”). Indeed, the FCC explained that “the
`TCPA did not intend to prohibit autodialer or
`prerecorded message calls to cellular customers for
`which the called party is not charged.” 1992 Order
`8775.
`Consistent with its focus on calls charged to
`recipients, Congress amended the TCPA in 1992 to
`authorize the FCC to exempt from the cellphone-call
`restriction any calls “that are not charged to the called
`party.” 47 U.S.C. § 227(b)(2)(C) (emphasis added);
`Pub. L. No. 102-556, § 402, 106 Stat. 4181, 4194-95
`(1992). The FCC has exercised that authority and
`promulgated numerous content-based exceptions to
`the cellphone-call ban for various types of commercial
`speech. For instance, certain healthcare-related calls
`(such as medical appointment reminders and
`prescription notifications) are exempted, as are
`package-delivery notifications and calls about data-
`security breaches and money transfers.2
`When creating these exceptions, the FCC has
`acknowledged that it is now technically feasible for
`callers to avoid making automated calls to cellular
`numbers that will be charged for the calls. 2015
`Order 8024, 8028, 8030; 2014 Order 3435-36. Indeed,
`today—unlike when the TCPA was enacted in 1991—
`nearly all phone plans are based on an unlimited-call
`
`2 See TCPA Rules and Regulations, 30 FCC Rcd. 7961,
`8024-28, 8031-32 (2015) (2015 Order); Cargo Airline Association
`Petition
`for Expedited Declaratory Building Rules and
`Regulations Implementing the Telephone Consumer Protection
`Act of 1991, 29 FCC Rcd. 3432, 3436-38 (2014) (2014 Order).
`
`
`
`8
`model, in which customers are not charged to receive
`calls or
`texts.
` See Justin
`(Gus) Hurwitz,
`Telemarketing, Technology, and the Regulation of
`Private Speech: First Amendment Lessons from the
`FCC’s TCPA Rules, 84 Brook. L. Rev. 1, 29 (2018). Yet
`despite recognizing that non- telemarketing calls do
`not undercut the privacy interests that motivated the
`TCPA’s enactment, the FCC has not exempted these
`types of calls to cellphones as it has for residential
`phones.
`2. In 2015, Congress created a new exception to
`the cellphone-call restriction for calls “made solely to
`collect a debt owed to or guaranteed by the United
`States.” 47 U.S.C. § 227(b)(1)(A)(iii). Under this
`government-debt exception, callers are allowed to
`make calls without consent using autodialing or
`prerecorded/artificial-voice technology so long as the
`call is for the collection of a private government-
`backed debt or a debt owed to the government itself.
`The FCC has interpreted the exception as turning on
`whether “the entire content of the call” is directed to
`collecting or resolving the debt. TCPA Rules and
`Regulations, 31 FCC Rcd. 9074, 9104 (2016) (August
`2016 Order); see also id. at 9087, 9093, 9109; 81 Fed.
`Reg. 80,603, 80,604 (Nov. 16, 2016) (same).
`The government-debt exception exposes a vast
`number
`of Americans
`to
`automated
`calls.
`Government-backed debts include privately issued
`student loans, mortgages, veterans’ loans, and farm
`loans. At the end of 2018, the government’s
`outstanding non-tax receivables totaled $1.6 trillion.
`U.S. Dep’t of Treasury, Fiscal Year 2018 Report to the
`Congress: U.S. Government Receivables and Debt
`Collection Activities of Federal Agencies 1 (Aug. 2019)
`(FY 2018 Report), https://fiscal.treasury.gov/files/
`
`
`
`9
`dms/debt18.pdf. And private mortgages and student
`loans—largely guaranteed by the government—are
`the two largest categories of consumer debt.3 For
`example, there is nearly $155 billion in private,
`federally guaranteed student loans through the
`Federal Family Education Loans program, affecting 7
`million
`student borrowers.4
` Much of
`this
`government-backed debt is collected by private
`companies, often using autodialed and prerecorded
`calls to cellphones. See FY 2018 Report at 11.
`like
`Unsurprisingly, debtors do not always
`receiving communications about their debts. The
`FCC has noted that the Federal Trade Commission
`(FTC) received “more than 900,000 consumer
`complaints in 2015 relating to debt collection—more
`than any other industry or practice.” August 2016
`Order 9077. Meanwhile, the Consumer Financial
`Protection Bureau reports that it “receives more
`complaints about debt collection than any other single
`industry.”5
`3. The TCPA is enforceable by the FCC and state
`attorneys general, and it also creates a private right
`of action that carries substantial penalties. 47 U.S.C.
`§ 227(b)(3), (g)(1), (g)(3), (g)(7). A violation of the
`
`3 Center for Microeconomic Data, Federal Reserve Bank
`of New York, Quarterly Report on Household Debt and Credit at
`3
`(Nov. 2019), https://www.newyorkfed.org/medialibrary/
`interactives/householdcredit/data/pdf/hhdc_2019q3.pdf.
`4 Federal Student Aid, U.S. Dep’t of Educ., Portfolio by
`Loan Status, https://studentaid.gov/data-center/student/portfolio
`(last visited Mar. 22, 2020) (follow “Portfolio by Loan Status”
`hyperlink).
`5 Letter from Consumer Financial Protection Bureau to
`FCC 4 (June 6, 2016), https://ecfsapi.fcc.gov/file/60002112663.pdf.
`
`
`
`10
`statute is automatically subject to a $500 penalty per
`call, with treble damages available “[i]f the court finds
`that the defendant willfully or knowingly” committed
`the violation. Id. § 227(b)(3).
`Buoyed by this strict liability scheme, TCPA
`litigation has exploded over the last decade. Between
`2009 and 2016, there was an almost 50-fold increase
`in the number of TCPA cases filed, from fewer than
`100 in 2009 to 4,840 in 2016. See Resps. Cert. Br. 5.
`This “skyrocketing” docket has led FCC Chairman
`Ajit Pai to characterize the TCPA as the “poster child
`for lawsuit abuse.” 2015 Order 8073 (dissenting); see
`generally Retail Litigation Center Amicus Br. 13-18
`(discussing abusive TCPA litigation).
`TCPA plaintiffs do not merely go after for-profit
`companies. They have also set their sights on
`nonprofits, religious organizations, and political
`entities.
` Indeed, political campaigns are now
`routinely sued in TCPA class actions. See Resps.
`Cert. Br. 6 (citing cases against filed against Obama
`and Trump presidential campaigns). The TCPA thus
`directly targets non-government speech of virtually
`every type, including “[p]olitical speech” at “‘the core
`of what the First Amendment is designed to protect.’”
`Morse v. Frederick, 551 U.S. 393, 403 (2007) (citation
`omitted).
`B. Factual and Procedural Background
`1. Respondents are entities whose core purpose is
`to participate in the American political process,
`including by disseminating political speech
`in
`connection with federal, state, and local elections.
`The
`American
`Association
`of
`Political
`Consultants, Inc. (AAPC) is a bipartisan trade
`association
`of
`political
`and
`public
`affairs
`
`
`
`11
`professionals; the Democratic Party of Oregon and
`Washington State Democratic Central Committee are
`political party organizations; and Public Policy
`Polling tracks public opinion on behalf of politicians
`and political organizations. JA32-34. Respondents
`and their members make calls to discuss candidates
`and issues, solicit candidate donations, conduct polls
`on political and policy issues, encourage voters to
`return their ballots, and organize “get out the vote”
`efforts. Id.; JA49-69.
`Respondents believe that their political activities
`would be significantly more cost-efficient, and thus
`have greater impact, if they could make these calls
`using
`automated-dialing
`technology
`or with
`prerecorded voices. JA50, 55, 59, 63. Research
`supports this belief. For instance, one recent study
`found that automated calls can increase voter turnout
`by up to one percentage point. See Daniel Kling &
`Thomas Stratmann, The Efficacy of Political
`Advertising: A Voter Participation Field Experiment
`with Multiple Robo Calls and Controls for Selection
`Effects, GMU Working Paper in Economics No. 16-31
`(Aug. 4, 2016), https://ssrn.com/abstract=2818182.
`Respondents recognize, however, that many of
`their desired activities could run afoul of the
`cellphone-call ban and risk $1,500 in damages for
`each call or text message made or sent. For instance,
`without prior consent, respondents cannot make
`aut
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