Can Trump Make the TCPA Great Again? A Highly-Speculative Look at the Future of the TCPA under a Trump Presidency

by Dorsey & Whitney LLP

So the person that won the second-most votes in last-week’s presidential election will soon be our new commander-in-chief (isn’t the electoral college neat?)

Now I like watching interest rates spike as much as the next guy, but in this line of business it pays to be politically agnostic, so don’t expect any political commentary here.  America has made its choice (sort of) and it is time for us to figure out what that may mean for the TCPA.

First, here’s a quick primer on how our government works:

  1. Under the separation of powers doctrine, Congress makes laws in this country, not the President—that would be “the very definition of tyranny.” –James Madison Federalist Papers, No. 47.

2. Just kidding. In reality, the president tells Congress what laws to make and Congress either obeys him or disobeys him depending on party loyalty and the perceived whims of the people.

a. Note: perceived whims of the people are determined by flash CNN or Fox News online polls and occasionally from less reliable sources

i. It’s a good system, just give it a chance.

3. Trump moves into the White House with GOP majorities in both houses of Congress. That should mean that he can get laws passed that he proposes. But Trump doesn’t always get along with “real” Conservatives who don’t like his whole New Yorky lifestyle thing.

a. But Trump now also has the power to unilaterally decide who directs the CFPB thanks to a recent D.C. Circuit Court of Appeal decision, which is just amazing.

i. That doesn’t effect the TCPA but how can this not have been mentioned on this blog yet?

It remains to be seen, therefore, whether Congress will work with President Trump to effect legislative change on key issues like TCPA reform. But, no matter what, I like our chances of seeing some real revisions to the TCPA under Trump’s presidency.  Here’s why:

First, Trump really likes Twitter and Twitter really hates the TCPA. See Nunes v. Twitter, 14-cv-02843-VB (N.D. Cal. July 1, 2016)

Second, Trump really likes Trump, and Trump (or at least his official campaign committee) is being sued for TCPA violations right now. See  Thorne v. Donald J. Trump for President, Inc., Case No. 16-cv-4603 (N.D. Ill). Here is the offending Trump text message:

trump-article-pictureThat’s pretty amazing but, strangely, not unprecedented. The Obama for America campaign faced a nearly identical lawsuit in Florida during Obama’s time in office. See Shamblin v. Obama for Am., No. 8:13-cv-2428-T-33TBM, 2015 WL 1754628, at *5 (M.D. Fla. Apr. 17, 2015). Whereas Obama was far too measured a fellow to take a TCPA lawsuit personally, Trump seems a touch more reactive. The ongoing litigation may well cause Trump to feel unjustly hemmed in by the statute and, better yet, to do something about it.

Third, like him or love him, Trump is a fantastic salesman.  “Salesmanship” is an extremely important quality when attempting TCPA reform because a lot of consumer groups are going to assume that more “robocalls” are necessarily a bad thing. But Trump, in his measured and logical fashion, will help guide the populace to see the truth. I look forward to future Tweets such as “The FCC is a mess” or “TCPA is a disaster for free speech.” Of course, I’ve been saying those things for years to no effect, but I only have 11 followers and Trump has about 2 trillion.

Fourth, speaking of the FCC, its directors are appointed by the President, approved by the Senate, and serve five year terms.  And all five of them will come up for appointment within Trump’s first term in office. How about that? Commissioner Pai and Rosenworcel’s terms are up for May 7, 2017 and the remainder of the Commissioners, including Chairman Wheeler, end their terms in November, 2018. If Trump cannot obtain help on the legislative front from Congress, he can always just backdoor TCPA reform via new FCC appointees.

Fifth, speaking of presidential appointments, the United States Supreme Court is also in play. Trump is guaranteed to appoint at least one Supreme Court justice to replace the late Justice Scalia thanks to some GOP Senate hardball that the New York Times told me was guaranteed to backfire.  Trump may also have the chance to appoint a few (or even several) additional justices as the average age of the Supreme Court justices is now over 69 years. Importantly, with the FCC’s TCPA Omnibus ruling on appeal to a feisty D.C. Circuit Court of Appeal, there is a good chance that the Supreme Court might be passing on TCPA issues in the next few years. Trump’s guiding hand on the Court might well inure to the TCPA’s great benefit.

Sixth, and finally, the TCPA really can be made great again. It was a good (perhaps great) statute when it was passed back in 1991—it prevented scattershot marketing calls that people hated. And it was fairly interpreted in 1992 by an FCC that recognized “[i]ndividuals’ privacy rights, public safety interests, and commercial freedom of speech and trade must be balanced in a way that protects the privacy of individuals and permits legitimate telemarketing practices.”   Indeed, the FCC’s original rules implied that only such random-fired telemarketing calls were governed by the TCPA and that calls to cell phones were only actionable if the “called party” was charged for the call.

Given the more ambitious elements of Trump’s agenda, I’d imagine that rolling back TCPA regulations by a mere 25 years in the name of free speech and Breitbart twitter alerts ought to be a no-brainer.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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