In a recent decision, the U.S. Court of Appeals for the Seventh Circuit held that the federal Telephone Consumer Protection Act did not preempt an Indiana state law with more restrictive prohibitions on autodialed calls — known as robocalls — potentially shutting out, at least in that circuit, the defense that compliance with the TCPA protects companies from suits claiming violation of stricter state laws. But where the Seventh Circuit may have closed a door, it may also have opened a window with perhaps much more far-reaching implications. In addition to reversing the lower court’s decision that the TCPA preempts Indiana’s autodialer law, the appellate court also remanded the case back to the district court to consider whether the state statute violates the First Amendment by restricting noncommercial political speech. Allowing this argument not only may impact the validity of the Indiana state law and perhaps other similar state laws, a successful First Amendment challenge in the Patriotic Veterans Inc. v. State of Indiana could have implications for the applicability of the TCPA itself.
The TCPA prohibits companies from placing nonemergency autodialed calls to residential telephone lines without the prior express consent of the recipient, unless exempted by the Federal Trade Commission. The Federal Communications Commission has elected to exempt noncommercial calls, including those delivering political messages, from the TCPA. The statute also prohibits all nonemergency autodialed calls to mobile phones without prior express consent, but does not provide the same exemption for political messages or other First Amendment protected speech. Consequently, all nonemergency calls and SMS texts to mobile phones, regardless of their content, require some form of consent.
Originally published in Law360, New York on January 13, 2014.
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