Telemarketing, Technology, and the Regulation of Private Speech: First Amendment Lessons from the FCC’s TCPA Rules

This article considers the viability of the Telephone Consumer Protection Act (TCPA) in light of recent Supreme Court First Amendment precedent and technological and regulatory developments. Robocalls—phone calls made using autodialers or prerecorded messages without the consent of the call recipient—have become one of the primary consumer protection issues facing regulators. With more than 2.4 billion of these calls placed each month, consumer concern about them dominate complaints received by both the Federal Communications Commission and Federal Trade Commission. Simultaneously, as cellphones have become a ubiquitous means by which individuals engage with one another and have become the public square, the scope of the TCPA has expanded from protection of the privacy of the home to a more general shield from unwanted communications. Because the TCPA regulates speech, it has been subject to repeated First Amendment challenges since it was enacted in 1991. Those challenges have consistently been reviewed subject to intermediate scrutiny, under which the statute has consistently survived. Recent developments in First Amendment precedent, however, suggest that such challenges brought in 2018 would likely be subject to strict scrutiny, rather than intermediate scrutiny. Moreover, recent technological and regulatory developments suggest that the TCPA is not sufficiently tailored to survive application of intermediate scrutiny, let alone its stricter cousin. Given the sharp increase in TCPA suits in recent years—from just fourteen suits in 2007 to nearly five thousand in 2016—and this legal evolution, this article provides analysis relevant to forthcoming judicial and regulatory consideration of the TCPA