`
`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 PetitiOn fOr a Writ Of CertiOrari tO the United
`StateS COUrt Of aPPealS fOr the fOUrth CirCUit
`
`BRIEF AMICI CURIAE OF FIFTEEN
`MEMBERS OF CONGRESS SUPPORTING
`THE CONSTITUTIONALITY OF THE
`TELEPHONE CONSUMER PROTECTION ACT
`
`KeIth J. Keogh
`Counsel of Record
`Keogh Law, Ltd.
`55 W. Monroe Street, Suite 3390
`Chicago, IL 60603
`(866) 726-1092
`keith@keoghlaw.com
`
`Counsel for Amici Curiae
`
`294798
`
`A
`
`(800) 274-3321 • (800) 359-6859
`
`
`
`i
`
`TABLE OF CITED AUTHORITIES . . . . . . . . . . . . . . iii
`
`INTEREST OF AMICI CURIAE . . . . . . . . . . . . . . . . . .1
`
`SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . .2
`
`ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .3
`
`I. The TCPA is a critical law that stops
`intrusions on Americans’ privacy, deters
`scams, and protects the integrity of the
`telephone as a means of communication. . . . . . . .3
`
`
`
`A. A bipartisan Congress enacted the TCPA
`
`to stop the scourge of robocalls. . . . . . . . . . .3
`
`B. The TCPA deters countless robocalls and
`protects Americans from scammers who
`use robocalls to prey on consumers . . . . . . .6
`
`
`
`C. Invalidating the TCPA would be
`disastrous for A merica because
`u n r e s t r i c t e d r ob o c a l l s wou ld
`completely undermine the telephone
`as a means of communication. . . . . . . . . . . . .9
`
`
`
`II. The TCPA is consistent with the First
`
`Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .11
`
`A. The TCPA regulates the means of
`
`communication, not speech. . . . . . . . . . . . . .11
`
`TABLE OF CONTENTS
`
`Page
`
`
`
`ii
`
`B. T he TCPA rea d i ly w it hst a nds
`
`intermediate scrutiny . . . . . . . . . . . . . . . . . .13
`
`C. T he T CPA wou ld a l so sat i sf y
`
`strict scrutiny . . . . . . . . . . . . . . . . . . . . . . . .15
`
`CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .17
`
`APPENDIX: LIST OF AMICI CURIAE . . . . . . . . . . .1a
`
`Table of Contents
`
`Page
`
`
`
`iii
`
`Cases
`
`American Association of Political Consultants,
`Inc. v. F.C.C.,
`923 F.3d 159 (4th Cir. 2019). . . . . . . . . . . . . . . . . . . . .16
`
`
`
`Brickman v. Facebook, Inc.,
`
`230 F. Supp. 3d 1036 (N.D. Cal. 2017) . . . . . . . . . . . .15
`
`Carey v. Brown,
`
`447 U.S. 455 (1980). . . . . . . . . . . . . . . . . . . . . . . . .15, 16
`
`Dietemann v. Time, Inc.,
`
`449 F.2d 245 (9th Cir. 1971). . . . . . . . . . . . . . . . . . . . .11
`
`Frisby v. Schultz,
`
`487 U.S. 474 (1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . .15
`
`Gallion v. Charter Comms., Inc.,
`
`287 F. Supp. 3d 920 (C.D. Cal. 2018) . . . . . . . . . . . . .15
`
`Giboney v. Empire Storage & Ice. Co.,
`
`336 U.S. 490 (1949). . . . . . . . . . . . . . . . . . . . . . . . . . . .11
`
`Greenley v. Laborers’ Int’l Union of N. Am.,
`
`271 F. Supp. 3d 1128 (D. Minn. 2017). . . . . . . . . . . . .15
`
`Holt v. Facebook, Inc.,
`
`240 F. Supp. 3d 1021 (N.D. Cal. 2017) . . . . . . . . . . . .15
`
`TABLE OF CITED AUTHORITIES
`
`Page
`
`
`
`iv
`
`In re Rules & Regulations Implementing the
` Telephone Consumer Protection Act of 1991,
`
`18 FCC Rcd. 14014 (2003) . . . . . . . . . . . . . . . . . . . . . .14
`
`Lloyd Corp. v. Tanner,
`
`407 U.S. 551 (1972) . . . . . . . . . . . . . . . . . . . . . . . . . . . .11
`
`Mais v. Gulf Coast Collection Bureau, Inc.,
`
`768 F.3d 1110 (11th Cir. 2014) . . . . . . . . . . . . . . . . . . .14
`
`Maryland v. Universal Elections, Inc.,
`
`729 F.3d 370 (4th Cir. 2013) . . . . . . . . . . . . . . . . . . . . .13
`
`Mejia v. Time Warner Cable, Inc.,
` No. 15-CV-6445, 2017 WL 3278926 (S.D.N.Y.
` Aug. 1, 2017) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .15
`
`Mims v. Arrow Fin. Servs. LLC,
`
`565 U.S. 368 (2012). . . . . . . . . . . . . . . . . . . . . . . . . . . . .4
`
`Nat’l Fed’n of the Blind v. F.T.C,
`
`420 F.3d 331 (4th Cir. 2005) . . . . . . . . . . . . . . . . . . . .13
`
`Osorio v. State Farm Bank, F.S.B.,
`
`746 F.3d 1255 (11th Cir. 2014) . . . . . . . . . . . . . . . . . . . .3
`
`Patriotic Veterans, Inc. v. Zoeller,
`
`845 F.3d 303 (7th Cir. 2017). . . . . . . . . . . . . . . . . . . . .14
`
`Rowan v. United States Post Office Dep’t,
`
`397 U.S. 728 (1970) . . . . . . . . . . . . . . . . . . . . . . . . .11, 13
`
`Cited Authorities
`
`Page
`
`
`
`v
`
`Soppet v. Enhanced Recovery Co., LLC,
`
`679 F.3d 637 (7th Cir. 2012). . . . . . . . . . . . . . . . . . . . .14
`
`Walters v. Nat’l Ass’n of Radiation Survivors,
`
`473 U.S. 305 (1985). . . . . . . . . . . . . . . . . . . . . . . . . . . .17
`
`Ward v. Rock Against Racism,
`
`491 U.S. 781 (1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . .13
`
`Williams-Yulee v. Florida Bar,
`
`575 U.S. 433 (2015). . . . . . . . . . . . . . . . . . . . . . . . . . . .15
`
`Statutes
`
`Telephone Consumer Protection Act of 1991,
` Pub. L. No. 102-243, 47 U.S.C. § 227 . . . . . . . . passim
`
`Telephone Robocall Abuse Criminal
` Enforcement and Deterrence Act, Pub. L.
` No. 116-105 (2019). . . . . . . . . . . . . . . . . . . . . . . . . . .5, 16
`
`Other Authorities
`
`137 Cong. Rec. 11310 (1991) . . . . . . . . . . . . . . . . . . . . . . . .3
`
`137 Cong. Rec. 3082 (1991) . . . . . . . . . . . . . . . . . . . . . . . . .3
`
`Americans Hit by Over 58 Billion Robocalls
`
`in 2019, Says YouMail Robocall Index, Cision
` PR Newswire Jan 15, 2020 . . . . . . . . . . . . . . . . . . . . . .7
`
`Cited Authorities
`
`Page
`
`
`
`vi
`
`Elaine S. Povich, States Try to Silence Robocalls, But
` They’re Worse Than Ever, Pew Research Ctr.
`
`(July 25, 2018) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .9
`
`FCC, FCC ISSUES $120 MILLION FINE FOR
` SPOOFED ROBOCALLS (2018), https://www.fcc.
` gov/document/fcc-fines-massive-neighbor-
`
`spoofing-robocall-operation-120-million. . . . . . . . . . .8
`
`FTC, National Do Not Call Registry Data Book for
` Fiscal Year 2019 (2019) . . . . . . . . . . . . . . . . . . . . . . . . .6
`
`Ga i l Col l i n s , Le t’s Destr o y Roboc a l l s,
` N.Y. Times, Mar. 1, 2019 . . . . . . . . . . . . . . . . . . . . . . . .7
`
`Herb Weisbaum, It’s Not Just You—Americans
`Received 30Billion Robocalls Last Year, NBC
` News, Jan. 17, 2018. . . . . . . . . . . . . . . . . . . . . . . . . . . . .7
`
`Oct av io Bla nco, Ma d Abo ut Roboca ll s,
` Consumer Reps., Apr. 2, 2019. . . . . . . . . . . . . . . . . . . .9
`
`S. Rep. No. 102-178 (1991). . . . . . . . . . . . . . . . . . . . . . . . .15
`
`S. Rep. No. 116-41 (2019) . . . . . . . . . . . . . . . . . . . . . . . . . .8
`
`S.1462 – Telephone Consumer Protection Act of 1991
`
`- Actions, Congress.gov, https://www.congress.
` gov/bill/102nd-congress/senate-bill/1462/actions. . . .5
`
`Cited Authorities
`
`Page
`
`
`
`vii
`
`SBA Office of Advocacy, 2018 Small Business
` Profile (2018), https://www.sba.gov/sites/default/
` files/advocacy/2018-Small-Business-Profiles-
` US.pdf . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10
`
`Tim Harper, Why Robocalls are Even Worse
` Than You Thought, Consumer Reps.
`
`(May 15, 2019) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .9
`
`Tara Siegel Bernard, Yes, It’s Bad. Robocalls,
`and Their Scams, Are Surging, N.Y. Times
`(May 6, 2018). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7, 9
`
`
`
`Cited Authorities
`
`Page
`
`
`
`1
`
`INTEREST OF AMICI CURIAE1
`
`Amici are Members of Congress, some of whom were
`instrumental in the enactment of the Telephone Consumer
`Protection Act (TCPA), 47 U.S.C. §227 (hereinafter TCPA),
`and all of whom have had experience with Congress’
`role in legislative oversight of the TCPA. Thus, amici
`are particularly well placed to provide the Court with
`background on the text, structure, and history of the TCPA
`and the manner in which it was intended to operate.
`
`Amici have unique knowledge and a strong interest in
`ensuring that the TCPA is construed by the federal courts
`in accord with its text and purpose.
`
`A full listing of congressional amici appears in
`Appendix A.
`
`1. Pursuant to Rule 37.6, Amicus Curiae affirms that no counsel
`for a party authored this brief in whole or in part, and no counsel or
`party made a monetary contribution intended to fund the preparation
`or submission of this brief. No person other than Amicus Curiae,
`its members, or its counsel made a monetary contribution to its
`preparation or submission. Respondents’ letters consenting to the
`filing of amicus briefs in support of either party has been filed with
`the Clerk. Petitioners have separately consented to this amicus brief.
`
`
`
`2
`
`SUMMARY OF ARGUMENT
`
`In 1991, Congress enacted the TCPA to stop the
`scourge of robocalls because “[b]anning such automated or
`prerecorded telephone calls. . . is the only effective means
`of protecting telephone consumers from this nuisance
`and privacy invasion.” Telephone Consumer Protection
`Act of 1991, Pub. L. No. 102-243, 105 Stat. 2394–95. The
`TCPA remains an essential, if not more essential, piece of
`legislation today. 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 TCPA does not and was never intended to
`restrict speech, as shown by Congress’ finding that the
`FCC should design rules “consistent with the free speech
`protections embodied in the First Amendment.” Telephone
`Consumer Protection Act of 1991, Pub. L. No. 102-243, 105
`Stat. 2395. The TCPA merely regulates communications
`when particular technologies are employed based on the
`relationship between the parties. Under any relevant
`level of scrutiny, the TCPA restrictions on automated
`calling technologies are an appropriate mechanism for
`protecting Americans from the plague of unwanted
`robocalls. Thus, the TCPA is also fully consistent with
`the First Amendment.
`
`
`
`3
`
`ARGUMENT
`
`I. The TCPA is a critical law that stops intrusions
`on Americans’ privacy, deters scams, and protects
`the integrity of the telephone as a means of
`communication.
`
`A. A bipartisan Congress enacted the TCPA to
`stop the scourge of robocalls.
`
`Enacted by Congress in 1991, the TCPA is a landmark
`law designed to protect all Americans from the aggravation
`and inconvenience of prerecorded or automated calls to
`cellular telephones, telemarketing calls, and unwanted
`junk faxes.
`
` “Senator Hollings, the TCPA’s sponsor, described
`these calls as ‘the scourge of modern civilization. They
`wake us up in the morning; they interrupt our dinner
`at night; they force the sick and elderly out of bed; they
`hound us until we want to rip the telephone out of the
`wall.’” Osorio v. State Farm Bank, F.S.B., 746 F.3d 1242,
`1255–56 (11th Cir. 2014) (quoting 137 Cong. Rec. 30821
`(1991)). Similarly, Congressman Markey noted “the aim
`of this legislation is … to secure an individual’s right to
`privacy that might be unintentionally intruded upon by
`these new technologies. For this reason the legislation
`addresses live unsolicited commercial telemarketing to
`residential subscribers.” 137 Cong. Rec. 11310 (1991).
`
`Congressional findings in 1991 underpinning the
`TCPA elaborate on these concerns. Specifically, Congress
`expressly found:
`
`
`
`4
`
`(5) Unrestricted telemarketing … 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.
`
`(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.
`
`(13) While the evidence presented to the
`Cong ress indicates that automated or
`prerecorded calls are a nuisance and an invasion
`of privacy, regardless of the type of call, the
`Federal Communications Commission should
`have the flexibility to design different rules for
`those types of automated or prerecorded calls
`that it finds are not considered a nuisance or
`invasion of privacy, or for noncommercial calls,
`consistent with the free speech protections
`embodied in the First Amendment of the
`Constitution.
`
`Telephone Consumer Protection Act of 1991, Pub. L. No.
`102-243, 105 Stat. 2394 – 95; see generally, Mims v. Arrow
`Fin. Servs., LLC, 565 U.S. 368, 371–73 (2012) (stating that
`TCPA “bans certain practices invasive of privacy”).
`
`
`
`5
`
`Specifically on the issue of robocalls, the TCPA places
`“restrictions on the use of automated telephone equipment”
`to stem “the proliferation of intrusive, nuisance calls . .
`. from telemarketers.” Telephone Consumer Protection
`Act of 1991, Pub. L. No. 102-243, 105 Stat. 2394–95.
`Automated calling technology gave telemarketers a cheap
`and scalable business model for inundating the public,
`resulting in an explosion of nuisance calls. Id. at 2394
`(“The use of the telephone to market goods and services to
`the home and other businesses is now pervasive due to the
`increased use of cost-effective telemarketing techniques .
`. . More than 300,000 solicitors call more than 18,000,000
`Americans every day.”)
`
`Similarly, Congress understood the specific harms
`that could result from a consistent bombardment of mobile
`devices and so forbade any person from making any
`call using an automatic telephone dialing system to any
`telephone number assigned to cellular telephone service,
`unless made “for emergency purposes” or with the “prior
`express consent of the called party.” 47 U.S.C. § 227(b)(1)
`(A)(iii) (2018).
`
`The TCPA is the product of overwhelming bipartisan
`support, enjoying both Democratic and Republican co-
`sponsors in Senate, and passing both houses by voice
`vote in November 1991. S.1462 – Telephone Consumer
`Protection Act of 1991 - Actions, Congress.gov, https://
`www.congress.gov/bill/102nd-congress/senate-bill/1462/
`actions.
`
`
`
`6
`
`B. The TCPA deters countless robocalls and
`protects Americans from scammers who use
`robocalls to prey on consumers.
`
`Since 1991, the TCPA has stopped a countless number
`of calls from reaching mobile phones that sit in people’s
`pockets, purses, and automobiles. Public and private
`enforcement has helped discourage telemarketers and
`others from using automated calling technology to contact
`consumers without their prior consent.
`
`In 2003, Congress bolstered the TCPA by passing the
`Do-Not-Call Implementation Act, 15 U.S.C. § 6151–6155,
`thereby authorizing the Federal Trade Commission (FTC)
`to establish the national Do Not Call Registry to facilitate
`compliance with the TCPA’s prohibition on calling
`landlines. The Do Not Call Registry provides a wildly
`popular means for citizens to notify telemarketers and
`others that their calls are unwelcome, with 239,472,857
`registered phone numbers as of 2019. FTC, National Do
`Not Call Registry Data Book for Fiscal Year 2019 5 (2019).
`
`Nevertheless, the need for the TCPA’s protections
`is ongoing as automated telephone calls continue to
`proliferate. “Unwanted calls are far and away the
`biggest consumer complaint to the FCC with over
`200,000 complaints each year – around 60 percent of all
`the complaints [the FCC] receive[s].” FCC, The FCC’s
`Push to Combat Robocalls & Spoofing, https://www.fcc.
`gov/about-fcc/fcc-initiatives/fccs-push-combat-robocalls-
`spoofing. Likewise, in each of fiscal years 2018 and 2019,
`the FTC received over 5 million complains about unwanted
`telemarketing calls. FTC, National Do Not Call Registry
`Data Book for Fiscal Year 2019 6 (2019).
`
`
`
`7
`
`The FTC’s figures almost certainly understate the
`problem’s scope as many consumers do not contact the
`FTC to make a complaint. It has been reported that
`Americans received over 30 billion robocalls in 2017 alone.
`Herb Weisbaum, It’s Not Just You—Americans Received
`30 Billion Robocalls Last Year, NBC News, Jan. 17, 2018.
`The number of robocalls has almost doubled in just two
`years with 58.5 billion robocalls reported for 2019. See
`Americans Hit by Over 58 Billion Robocalls in 2019,
`Says YouMail Robocall Index, Cision PR Newswire (Jan
`15, 2020), https://www.prnewswire.com/news-releases/
`americans-hit-by-over-58-billion-robocalls-in-2019-says-
`youmail-robocall-index-300987126.html. Likewise, The
`New York Times has reported extensively on the exploding
`number of robocall complaints and widespread consumer
`outrage about illegal telemarketing. Gail Collins, Let’s
`Destroy Robocalls, N.Y. Times, Mar. 1, 2019; Tara Siegel
`Bernard, Yes, It’s Bad. Robocalls, and Their Scams, Are
`Surging, N.Y. Times, May 6, 2018.
`
`This explosion of unwanted robocalls has occurred
`despite the protections and penalties provided by
`the TCPA. Thus, it is self-evident that without those
`protections and penalties, the already-enormous number
`of unwanted robocalls would exponentially increase,
`as the low cost and high scalability of automated call
`technology would grant anyone with a product or service
`the unfettered ability to assault the full public with a non-
`stop wave of unwanted calls around the clock.
`
`Since the TCPA’s initial passage in 1991, robocalls
`have become an even more pernicious problem because
`scammers are increasingly using robocalling technology
`to perpetrate their schemes, often targeting senior citizens
`
`
`
`8
`
`and other vulnerable populations. Scammers are using
`spoofing technology (which allows them to fraudulently
`make it look like their calls are coming from a neighbor or
`a trusted entity) in conjunction with automation to make
`robocalls which target and reach an enormous number
`of vulnerable consumers. For example, in a span of three
`month between 2015 and 2016, Adrian Abramovich,
`allegedly made 96 million spoofed robocalls to trick
`consumers into sales pitches for vacation packages. FCC,
`FCC ISSUES $120 MILLION FINE FOR SPOOFED
`ROBOCALLS (2018), https://www.fcc.gov/document/fcc-
`fines-massive-neighbor-spoofing-robocall-operation-120-
`million. In 2019, Congress determined that these scam
`robocalls are a growing concern and estimated that “in
`2019, nearly 50 percent of all calls to mobile phones will
`be scam robocalls.” S. Rep. No. 116-41, 2–3 (2019).
`
`To address the problem of scam robocalls, Congress
`passed the Telephone Robocall Abuse Criminal
`Enforcement and Deterrence (TRACED) Act in 2019
`with broad bipartisan support. Telephone Robocall Abuse
`Criminal Enforcement and Deterrence Act, Pub. L. No.
`116-105 (2019). The TRACED Act tackled the issue of
`spoofing and enhanced the enforcement of the TCPA via
`increased penalties and a longer statute of limitations. Id.
`Congress enacted these changes to “enable the FCC to
`better pursue bad actors” and considers increased TCPA
`enforcement to be an important component of punishing
`and deterring criminal robocall violations. S. Rep. No.
`116-41, 5–6 (2019).
`
`
`
`9
`
`C. Invalidating the TCPA would be disastrous
`for America because unrestricted robocalls
`would completely undermine the telephone as
`a means of communication.
`
`Even with the TCPA in place, robocalls are already
`threatening the viability of the telephone as a useful means
`of communication for commerce, for government use, or
`just to keep in touch with one another. Lately, Americans
`have been screening all of their calls, causing both known
`and unknown consequences. Many people now refuse to
`answer calls from unfamiliar sources, sometimes leading
`to harmful results. See, e.g., Tim Harper, Why Robocalls
`are Even Worse Than You Thought, Consumer Reps., May
`15, 2019 (reporting delays in medical treatment because
`people no longer respond to calls from medical specialists);
`Tara Siegel Bernard, Yes, It’s Bad. Robocalls, and Their
`Scams, Are Surging, N.Y. Times, May 6, 2018 (reporting
`that one doctor ignored a call from the emergency room
`because he assumed it was a robocall).
`
`In one survey, 70 percent of respondents said
`they stopped answering calls from numbers they do
`not recognize. Octavio Blanco, Mad About Robocalls,
`Consumer Reps., Apr. 2, 2019. As a result, robocallers
`simply dial more numbers in order to reach the same
`number of people. Elaine S. Povich, States Try to Silence
`Robocalls, But They’re Worse Than Ever, Pew Stateline
`Blog (July 25, 2018), https://www.pewtrusts.org/en/
`research-and-analysis/blogs/stateline/2018/07/25/states-
`try-to-silence-robocalls-but-theyre-worse-than-ever.
`
`Now imagine what American phone usage would look
`like if the TCPA were invalidated, leaving no restrictions
`
`
`
`10
`
`on robocalling. For example, with over 30 million small
`businesses in the U.S., SBA Office of Advocacy, 2018
`Small Business Profile (2018), https://www.sba.gov/sites/
`default/files/advocacy/2018-Small-Business-Profiles-US.
`pdf, if even a small percentage of them started to make
`thousands of calls each day,2 that alone would generate
`annual unwanted automated calls potentially numbering
`in the trillions. Imagine further if larger businesses
`and other entities started to robocall our mobile phones,
`freed of the need to gain our consent before calling. The
`scammers are now violating the law and calling without
`consent, but legitimate businesses—who would likely love
`to touch base with consumers for surveys and reminders,
`as well as telemarketing and other purposes—would be
`free to call as often as they wish.
`
` The constant bombardment of our mobile devices could
`render them effectively useless. As a means of protecting
`themselves, some consumers might simply disable the
`voice calls feature on their phones, possibly causing
`medical personnel and businesses to miss critical calls and
`preventing the legitimate and necessary communications
`and commerce from flowing from one phone to another.
`The impact would be dramatic and devastating. So just as
`the number of unwanted calls continues to grow despite
`the existence and enforcement of the TCPA, in the absence
`of the safeguards provided by the TCPA, the number of
`unwanted calls would grow exponentially, as businesses
`and others could make robocalls with impunity. This
`robocall explosion would render our cell phones utterly
`useless as a means of communication.
`
`2. It is a straightforward process to use an internet dialing
`system to mass dial numbers for very little cost. This technology
`is readily available to small businesses.
`
`
`
`11
`
`II. The TCPA is consistent with the First Amendment.
`
`A. T h e T C PA r e g u l a t e s t h e m e a n s o f
`communication, not speech.
`
`As an initial matter, the TCPA does not, and was
`not designed to, restrict speech. It aims to regulate a
`particular means of communication to facsimile machines,
`home numbers on the Do Not Call Registry, and automated
`telephone calls or prerecorded calls to cellular telephones
`made without the called party’s consent.
`
`This is entirely permissible because “[i]t has never
`been deemed an abridgement of freedom of speech or
`press to make a course of conduct illegal merely because
`the conduct was in part initiated, evidenced, or carried out
`by means of language, either spoken, written, or printed.”
`Giboney v. Empire Storage & Ice. Co., 336 U.S. 490, 502
`(1949). Moreover, “[t]he First Amendment is not a license
`to trespass, to steal, or to intrude by electronic means
`into the precincts of another person’s home or office.”
`Dietemann v. Time, Inc., 449 F.2d 245, 249 (9th Cir. 1971).
`
`Simply put, Plaintiffs have no First Amendment Right
`to make the calls at issue. The First Amendment has never
`been held to authorize trespasses (here on businesses
`or consumers’ cellular telephones) for the purpose of
`engaging in even the most highly-protected speech, much
`less to disseminate unwanted advertising or calls. Lloyd
`Corp. v. Tanner, 407 U.S. 551, 568 (1972). Likewise, in
`Rowan v. United States Post Office Dep’t, 397 U.S. 728
`(1970), this Court upheld a statute authorizing the post
`office to require advertisers remove names from their
`mailing lists and stop all future mailings upon request.
`
`
`
`12
`
`In rejecting the First Amendment challenge brought by
`the industry including publishers and operators of various
`mail-order advertisers, this Court held:
`
`. . . Weighing the highly important right to
`communicate, but without trying to determine
`where it fits into constitutional imperatives,
`against the very basic right to be free from
`sights, sounds, and tangible matter we do not
`want, it seems to us that a mailer’s right to
`communicate must stop at the mailbox of an
`unreceptive addressee. . . . To hold less would
`tend to license a form of trespass and would
`make hardly more sense than to say that a radio
`or television viewer may not twist the dial to cut
`off an offensive or boring communication and
`thus bar its entering his home. Nothing in the
`Constitution compels us to listen to or view any
`unwanted communication, whatever its merit;
`we see no basis for according the printed word
`or pictures a different or more preferred status
`because they are sent by mail. The ancient
`concept that ‘a man’s home is his castle’ into
`which ‘not even the king may enter’ has lost
`none of its vitality, and none of the recognized
`exceptions includes any right to communicate
`offensively with another. . . . We therefore
`categorically reject the argument that a vendor
`has a right under the Constitution or otherwise
`to send unwanted material into the home of
`another. If this prohibition operates to impede
`the flow of even valid ideas, the answer is that
`no one has a right to press even ‘good’ ideas on
`an unwilling recipient. . . . The asserted right of
`
`
`
`13
`
`a mailer, we repeat, stops at the outer boundary
`of every person’s domain.
`
`Id. At 736 – 38. Requiring consent prior to robocalling a
`person’s cellular phone is simply not an infringement of
`the First Amendment.
`
`B. The TCPA readily withstands intermediate
`scrutiny.
`
`As a content-neutral restriction on the manner in
`which certain calls may be made, at most the TCPA’s
`automated call restrictions are subject to intermediate
`scrutiny. See Maryland v. Universal Elections, Inc.,
`729 F.3d 370, 376 (4th Cir. 2013) (applying intermediate
`scrutiny to TCPA autodialer requirements). A law satisfies
`that standard if it “promotes a substantial government
`interest that would be achieved less effectively absent
`the regulation,” and does not “burden substantially more
`speech than is necessary to further the government’s
`legitimate interests.” Ward v. Rock Against Racism, 491
`U.S. 781, 799 (1989) (internal citations and quotations
`omitted). To withstand review, the law “need not be the
`least restrictive or least intrusive means” of serving the
`government’s significant interests. Id. at 798.
`
`Courts have previously upheld restrictions on the time,
`place, or manner in which calls may be made under this
`standard. See, e.g., Universal Elections, 729 F.3d at 377
`(upholding a TCPA provision requiring that all artificial
`or prerecorded telephone messages disclose the caller’s
`identity and telephone number); Nat’l Fed’n of the Blind
`v. F.T.C, 420 F.3d 331, 341–43 (4th Cir. 2005) (upholding
`FTC regulations imposing disclosure requirements, time-
`
`
`
`14
`
`of-day restrictions, and other rules with respect to certain
`charitable calls).
`
`Congress found that the use of autodialers and
`artificial or prerecorded voices presents a significant
`threat to the privacy interest of Americans. Telephone
`Consumer Protection Act of 1991, Pub. L. No. 102-243,
`105 Stat. 2394–95 (finding that unrestricted telemarking
`can be “an intrusive invasion of privacy” and that a ban is
`the only effective means of limiting this intrusion).
`
`These concerns have been echoed by virtually every
`court to examine the TCPA or a state court analog. “The
`lack of a live person makes the call frustrating for the
`recipient but cheap for the caller, which multiplies the
`number of these aggravating calls in the absence of legal
`controls.” Patriotic Veterans, Inc. v. Zoeller, 845 F.3d 303,
`306 (7th Cir. 2017); see also, Moser v. F.C.C., 46 F.3d 970,
`974 (9th Cir. 1995) (concluding that “Congress accurately
`identified automated telemarketing calls as a threat to
`privacy”), Mais v. Gulf Coast Collection Bureau, Inc.,
`768 F.3d 1110, 1114, (11th Cir. 2014) (citing In re Rules
`& Regulations Implementing the Telephone Consumer
`Protection Act of 1991, 18 FCC Rcd. 14014, 14022 (2003))
`(recognizing the nuisance and privacy invasion caused by
`automated telephone calls where the consumer is forced
`to deal with the annoyance and aggravation of abandoned
`calls); Soppet v. Enhanced Recovery Co., LLC, 679 F.3d
`637, 639 (7th Cir. 2012) (“[P]redictive dialers lack human
`intelligence and, like the buckets enchanted by the
`Sorcerer’s Apprentice, continue until stopped by their
`true master. Meanwhile Bystander is out of pocket the
`cost of the airtime minutes and has had to listen to a lot
`of useless voicemail.”).
`
`
`
`15
`
`Accordingly, the TCPA easily passes intermediate
`scrutiny.
`
`C. The TCPA would also satisfy strict scrutiny.
`
`Even if the TCPA was subject to strict scrutiny, it
`would withstand review because it is “narrowly tailored
`to serve a compelling interest.” Williams-Yulee v.
`Florida Bar, 575 U.S. 433, 442 (2015) (upholding a judicial
`solicitation ban under that standard).
`
`The district court is not alone in correctly holding
`the automated call restriction satisfies this demanding
`standard of review. See, e.g., Gallion v. Charter Comms.,
`Inc., 287 F. Supp. 3d 920 (C.D. Cal. 2018); Greenley v.
`Laborers’ Int’l Union of N. Am., 271 F. Supp. 3d 1128 (D.
`Minn. 2017); Mejia v. Time Warner Cable, Inc., No. 15-
`CV-6445, 2017 WL 3278926 (S.D.N.Y. Aug. 1, 2017); Holt
`v. Facebook, Inc., 240 F. Supp. 3d 1021 (N.D. Cal. 2017);
`Brickman v. Facebook, Inc., 230 F. Supp. 3d 1036 (N.D.
`Cal. 2017).
`
`As noted above, Congress enacted the TCPA to protect
`the public from automated phone calls and the attendant
`invasion of personal and residential privacy. S. Rep. No.
`102-178, at 5 (1991). Before this restriction was enacted,
`“[m]any consumers [we]re outraged over the proliferation
`of intrusive, nuisance calls to their homes” and cell phones.
`Telephone Consumer Protection Act of 1991, Pub. L.
`No. 102-243, 105 Stat. 2394. The government’s interest
`in preventing such calls and thereby “protecting the
`well-being, tranquility, and privacy of the home is of the
`highest order.” Carey v. Brown, 447 U.S. 455, 471 (1980);
`see Frisby v. Schultz, 487 U.S. 474, 484–85 (1988) (“[W]e
`
`
`
`16
`
`have repeatedly held that individuals are not required to
`welcome unwanted speech into their own homes and that
`the government may protect this freedom.”). In addition,
`Plaintiffs conceded “the protection of residential privacy
`is undoubtedly a compelling governmental interest” in
`their briefing before the Fourth Circuit. Appellants’ Reply
`Brief at 6, American Association of Political Consultants,
`Inc. v. F.C.C., 923 F.3d 159 (4th Cir. 2019) (citing Carey v.
`Brown, 447 U.S. 455, 471 (1980)).
`
`The automated calling restriction directly furthers
`this compelling privacy interest by generally preventing
`the use of precisely those technologies Congress found
`to be the most intrusive, only when the recipient has
`not consented to them. In this way the statute balances
`the caller’s ease of access with the recipient’s ability
`to consent—or withhold consent— for these cheap,
`automated calls. The facts that the Do Not Call Registry
`continues to increase in registered telephone numbers,
`that robocall complaints continue to number in the
`millions, and that Congress continues to pass laws seeking
`to stop the scourge of robocalls, Telephone Robocall
`Abuse Criminal Enforcement and Deterrence Act, Pub.
`L. No. 116-105 (2019), all illustrate the legitimacy of the
`government’s privacy interests underlying the TCPA are
`still valid, if not more so, in 2020.
`
`Congress further expressly found that limiting the use
`of autodialers and prerecorded voices to calls for which
`the recipient had consented “is the only effective means
`of protecting telephone consumers from th[e] nuisance
`and privacy invasion” caused by such calls. Telephone
`Consumer Protection Act of 1991, Pub. L. No. 102-243,
`105 Stat. 23