Paranoid Androids: Free Speech Versus Privacy in America’s Resistance Against Intrusive Robocalls

Abstract

This article discusses attempts by the American government to regulate robocalls – the automated and often fraudulent messages that are sent to citizens' phones by the billions every year. The earliest regulations against uninvited telephone solicitations were positioned by Congress and regulatory agencies as content-neutral protections of privacy in the home. This perspective aroused little controversy for years, but it has recently been overtaken by misleading free speech analyses demanded by robocall purveyors, who in turn use such arguments to chip away at privacy protections. This article argues that regulations and statutes intended to restrict robocalls were enacted with the intent of protecting consumer privacy over the speech-related rights of telemarketers. However, telemarketers have adopted the argument that such restrictions are unconstitutional infringements on free speech. The judiciary has responded with tortured attempts to balance privacy and speech, when that sort of analysis should not be necessary if all parties revisited the privacy values of the relevant statutes and regulations.

Correction Statement

This article has been corrected with minor changes. These changes do not impact the academic content of the article.

Notes

1 137 Cong. Rec. 30821 (1991), at 30821; stated by Sen. Fritz Hollings (D-S.C.).

2 Megan Leonhardt, Americans Lost $29.8 Billion to Phone Scams Alone over the Past Year, CNBC (June 29, 2021), available at https://www.cnbc.com/2021/06/29/americans-lost-billions-of-dollars-to-phone-scams-over-the-past-year.html (last visited May 17, 2023).

3 Sarah Krouse, Robocall Scams Exist Because They Work—One Woman’s Story Shows How, Wall St. J. (Nov. 19, 2021), available at https://www.wsj.com/articles/robocall-scams-exist-because-they-workone-womans-story-shows-how-11574351204 (last visited May 17, 2023).

4 Samantha Cole, Complaints to Government Show Americans’ Slow Descent into Madness Over Spam Calls, Vice (July 13, 2022), available at https://www.vice.com/en/article/5d3bqz/complaints-to-government-show-americans-slow-descent-into-madness-over-spam-calls (last visited May 17, 2023).

5 This is discussed in detail in the second and third sections infra.

6 140 S. Ct. 2335 (2020), analyzed in the fourth section infra.

7 Robert D. McFadden, Lester Wunderman, Father of Direct Marketing, Dies at 98, N.Y. Times (Jan. 14, 2019), available at https://www.nytimes.com/2019/01/14/business/lester-wunderman-dead.html (last visited May 17, 2023).

8 Wendy Woloson, How Benjamin Franklin Invented the Mail-Order Business, Bloomberg (Mar. 13, 2013), available at https://www.bloomberg.com/opinion/articles/2013-03-13/how-benjamin-franklin-invented-the-mail-order-business (last visited May 17, 2023).

9 Aaron Gordon, How We Ended Up with All This Junk Mail, Vice (Oct. 15, 2020) available at https://www.vice.com/en/article/889wyv/how-we-ended-up-with-all-this-junk-mail (last visited May 17, 2023).

10 Chris Jackson, Pick Up the Phone: Fundamentals of Modern Telemarketing 14-15 (2010).

11 Alex W. Palmer, On the Trail of the Robocall King, Wired (Mar. 25, 2019), available at https://www.wired.com/story/on-the-trail-of-the-robocall-king (last visited May 17, 2023).

12 Spencer Weber Waller, Daniel B. Heidtke, & Jessica Stewart, The Telephone Consumer Protection Act of 1991: Adapting Consumer Protection to Changing Technology, 26 Loyola Consumer L. Rev. 343, 347 (2014).

13 Federal Communications Commission, The Telephone Consumer Protection Act of 1991, Notice of Proposed Rulemaking, 7 FCC Rcd 2736 (1992), at 2744.

14 Seth Stern, Will Feds Tackle Telemarketers?, Christian Science Monitor (Apr. 15, 2002), available at https://www.csmonitor.com/2002/0415/p16s01-wmcn.html (last visited May 17, 2023).

15 This problem, as a scourge of the early 1990s, was cited by the Supreme Court in Barr v. Am. Ass’n. of Political Consultants, 140 S. Ct. 2335, 2344 (2020); that case is analyzed extensively infra. Excessive consumer complaints were also mentioned in the text of the Telephone Consumer Protection Act of 1991 at 47 U.S.C. § 227(b)(2)(G)(i), which is also discussed infra.

16 For information on the advent of the term robocall and its modern usage, see infra notes 122–123 and accompanying text.

17 Christian Hetrick, Meet the Robocall Avenger: Andrew Perrong, 21, Sues Those Pesky Callers for Cash, Phila. Inquirer (Nov. 2, 2018) available at https://www.inquirer.com/philly/business/robocall-lawsuits-verizon-citibank-andrew-perrong-20181102.html (last visited May 17, 2023).

18 Id.

19 Hamza Shaban, Nearly Half of Cellphone Calls Will Be Scams by 2019, Report Says, Wash. Post (Sept. 19, 2018), available at https://www.washingtonpost.com/technology/2018/09/19/nearly-half-cellphone-calls-will-be-scams-by-report-says (last visited May 17, 2023). Evidence indicated a sharp rise in fraudulent calls targeted at immigrant communities, preying on their lesser understanding of English or their fears of prosecution for immigration violations.

20 Brian X. Chen, You Can’t Stop Robocalls. You Shouldn’t Have To, N.Y. Times, Apr. 24, 2019, available at https://www.nytimes.com/2019/04/24/technology/personaltech/stop-robocalls.html (last visited May 17, 2023). The specific problem with “spoofed” phone numbers is described at The TRACED Act subsection infra.

21 Barr v. Am. Ass’n. of Political Consultants, 140 S. Ct. 2335, 2343 (2020).

22 Id. Kavanaugh did not provide a source for the statistic.

23 Patriotic Veterans v. Zoellner, 845 F.3d 303, 306–306 (7th Cir. 2017) (concerning a state law in Indiana that attempted to restrict automated calls by nonprofit groups).

24 Hetrick, supra note 17. The relevant provision in the TCPA allows “an action to recover for actual monetary loss from such a violation, or to receive $500 in damages for each such violation, whichever is greater.” 47 U.S.C. § 227(b)(3)(B) (2020).

25 Ariana Garcia, How a Texas Man Made Over $100K Suing Telemarketers Over Robocalls, Houston Chronicle, Mar. 23, 2022, available at https://www.chron.com/news/houston-texas/article/Robocalls-how-to-stop-Texas-telemarketers-17009921.php (last visited May 17, 2023).

26 Postal Revenue and Federal Salary Act of 1967, 39 U.S.C. § 4009 (1967).

27 Rowan v. U.S. Post Office Dept., 397 U.S. 728, 738 (1970).

28 F.C.C. v. Pacifica Foundation, 438 U.S. 726, 748 (1978); citing Rowan, 397 U.S. 728.

29 Carey v. Brown, 447 U.S. 455, 471 (1980) (concerning an ordinance prohibiting labor-related picketing at a private home); cited by Frisby v. Schultz, 487 U.S. 474, 484 (1988) (concerning an ordinance prohibiting anti-abortion protests at a private home).

30 Rodney A. Smolla, The “Do-Not-Call List” Controversy: A Parable of Privacy and Speech, 38 Creighton L. Rev. 743, 757 (2005).

31 Waller et al., supra note 12, at 354–355.

32 47 U.S.C. § 227(a)(1). This act was focused on automated calls that are made for any reason. Three years later Congress passed another statute to tackle the concurrent problem of fraud by telemarketers. See Telemarketing Consumer Fraud and Abuse Prevention Act, 15 U.S.C. §§ 6101–6108 (2006) (originally enacted in 1994).

33 47 U.S.C. § 227(b)(1)(B).

34 Maria G. Hibbard, Hanging Up Too Early: Remedies to Reduce Robocalls, 5 J. of Law, Technology & the Internet 79, 90–96 (2014).

35 Id. at 82–85.

36 This statement was made by Sen. Fritz Hollings (D-S.C.). See supra note 1.

37 H.R. Rep. No. 101-633, at 3 (1990). The FCC expanded the “safety” argument when administering the TCPA in later years, because with the advent of cellular phones, an incoming robocall could lead to danger if the recipient feels compelled to answer the phone while walking or driving. See Waller et al., supra note 12, at 366.

38 Daniel R. Shiman, An Economic Approach to the Regulation of Direct Marketing, 58 Fed. Communications L. J. 321, 322 (2006).

39 Waller et al., supra note 12, at 347.

40 PDR Network, LLC v. Carlton & Harris Chiropractic, Inc., 139 S.Ct. 2051, 2054 (2019). This case was largely a procedural dispute over the techniques used by the Federal Communications Commission in charging the junk fax purveyor with a violation of the TCPA.

41 S. Rep. No. 102-178, at 1 (1991).

42 47 U.S.C. § 227(b)(1)(A)(iii).

43 This was the prevailing practice for both making and receiving calls during the early years of the cellular phone marketplace, and was standard for the relatively few cellular customers in America when the TCPA was passed in 1991. As the cellular marketplace grew rapidly around the turn of the millennium, other billing options appeared but many customers continued to be billed by the minute. See Oren Bar-Gill & Rebecca Stone, Pricing Misperceptions: Explaining Pricing Structure in the Cell Phone Service Market, 9 J. of Empirical Law Studies 430, 436–446 (2012).

44 By the time smart phones became dominant among consumers, per-minute or per-call charges for voice calls had largely been phased out, with calls now considered to be data within a smart phone plan’s charges for general access to the Internet, though the older style of charges is still relevant for some customers or for particular types of international calls. See Lynn La, Everything You Need to Know about Wi-Fi Calling, CNet (Nov. 28, 2018), available at https://www.cnet.com/tech/mobile/what-is-wifi-calling-tmobile-verizon-att-google-fi-sprint-setup-faq (last visited May 17, 2023).

45 Raymond Huahong Tu, Robo-Calls are Unstoppable. Why Your Phone Won’t Quit Ringing., Wash. Post (Mar. 17, 2019), available at https://www.washingtonpost.com/national/health-science/robo-calls-are-unstoppable-why-your-phone-wont-quit-ringing/2019/03/15/a4d553b8-44ef-11e9-8aab-95b8d80a1e4f_story.html (last visited May 17, 2023).

46 Hibbard, supra note 34, at 111–112.

47 47 U.S.C. § 227(b)(2)(F).

48 47 U.S.C. § 227(b)(1)(B).

49 Campbell-Ewall Co. v. Gomez, 577 U.S. 153, 167-168 (2016) (concerning a dispute over text messages for recruiting purposes, originating from the United States Navy but with the automation performed by a third-party firm). This ruling has been interpreted as allowing limited immunity for government contractors who may have fallen afoul of TCPA requirements when acting on behalf of the government. See also Kyle J. Steinmetz, Don’t Call Me Anymore: Free Speech and Robocalls after Barr v. American Association of Political Consultants, 60 Infrastructure 3, 5 (2021).

50 Barr v. Am. Ass’n. of Political Consultants, 140 S. Ct. 2335 (2020), analyzed in the fourth section infra.

51 Waller et al., supra note 12, at 348.

52 47 U.S.C. § 227(b)(3).

53 The per call nature of the statute has been confirmed at the Circuit Court level: Charvat v. GVN Michigan Inc., 561 F.3d 623, 631 (6th Cir. 2009) (affirming the per call distinction, though the aggrieved party’s case was dismissed due to lack of jurisdiction).

54 H.R. Rep. No. 102-317, at 10 (1991).

55 47 U.S.C. § 227(f)(1).

56 This is enabled by the FCC’s general ability to levy fines for violations of a variety of communications regulations, codified at 47 U.S.C. § 503. The willfully or knowingly provision has been confirmed at the Circuit Court level: Lary v. Trinity Physician Financial & Insurance Servs., 780 F.3d 1101, 1106 (11th Cir. 2015) (affirming the possibility of higher damages for “willfully or knowingly” violating the statute, though the plaintiff was unable to prove that the defendant had done so).

57 47 U.S.C. § 227(c).

58 Steinmetz, supra note 49, at 3.

59 Id.

60 Federal Trade Commission, Telemarketing Sales Rule, Final Amended Rule, 68 Fed. Reg. 4580, at 4629 (2003).

61 Id.

62 47 U.S.C. §§ 227(b)(1)(B), 227(b)(2).

63 16 C.F.R. §§ 310.2(x), 310.2(dd).

64 16 C.F.R. § 310.4(a)(5).

65 16 C.F.R. § 310.6(a).

66 Do-Not-Call Improvement Act, Pub. L. No. 110-187, 122 Stat. 633 (codified at 15 U.S.C. §§ 6151–6155) (2007).

67 Mainstream Marketing Services, Inc. v. FTC, 358 F.3d 1228, 1250–1251 (10th Cir. 2004). See also Joseph Dean Findley, The Do-Not-Call Registry and Its Overwhelming Support: This Time Congress Really Means It, 5 Wyoming. L. Rev. 605, 621–622 (2005).

68 358 F.3d at 1237; quoting Rowan v. United States Post Office Dep't, 397 U.S. 728, 737 (1970); and Frisby v. Schultz, 487 U.S. 474, 484 (1988).

69 Smolla, supra note 30, at 749.

70 James Sweet, Opting-Out of Commercial Telemarketing: The Constitutionality of the National Do-Not-Call Registry, 70 Tennessee. L. Rev. 921, 975–976 (2003).

71 Id. at 981.

72 Waller et al., supra note 12, at 378–379.

73 This statistic was cited by the Tenth Circuit in a ruling about the constitutionality of the Do-Not-Call Registry, but with no indication of where the figure originated. Mainstream Marketing Services, Inc. v. F.T.C., 358 F.3d 1228, 1234 (10th Cir. 2004).

74 Waller et al., supra note 12, at 379. Note that this figure is possibly higher than the number of American adults who have phones. It includes a large number of businesses, while many people registered more than one personal phone number. The authors of the study concluded that about 72% of phone-owning citizens made use of the registry in some fashion.

75 Hibbard, supra note 34, at 80.

76 Marguerite Reardon, Robocalls Are Out of Control. Is a New Mandated Technology Helping?, CNet (Aug. 28, 2021), available at https://www.cnet.com/tech/mobile/robocalls-are-out-of-control-a-new-mandated-technology-helping (last visited May 17, 2023).

77 Federal Trade Commission, FTC Settlement Bans Robocalls from Auto “Warranty” Company, press release (Sept. 1, 2009), available at https://www.ftc.gov/news-events/press-releases/2009/09/ftc-settlement-bans-robocalls-auto-warranty-company (last visited May 17, 2023). See also Kyle Gaffaney, Federal Ban on Automated Prerecorded Messages, So-Called Robocalls, Goes into Effect, 22 Loy. Consumer L. Rev. 130, 131 (2009).

This new rule was the outcome of a settlement with a company that attempted to convince consumers to buy a fraudulent warranty for service on their car because their previous warranty had recently expired. This type of scam was prevalent at the time; unfortunately, it is still common more than a decade later, as has been admitted by the FTC. See Federal Trade Commission, Hang Up on Auto Warranty Robocalls, consumer information announcement (May 19, 2021), available at https://www.consumer.ftc.gov/blog/2021/05/hang-auto-warranty-robocalls (last visited May 17, 2023).

78 Sarah Krouse, The FCC Has Fined Robocallers $208 Million. It’s Collected $6,790, Wall St. J. (Mar. 28, 2019), available at https://www.wsj.com/articles/the-fcc-has-fined-robocallers-208-million-its-collected-6-790-11553770803 (last visited May 17, 2023).

79 Abigail Rosenthal, Two Texas Telemarketers Just Got Hit with FCC's Largest Fine Ever for Robocalls, Houston Chron. (Mar. 18, 2021), available at https://www.chron.com/news/houston-texas/article/robocall-texas-telemarketer-fcc-fine-16036364.php (last visited May 17, 2023). This fine was enhanced by the fact that the robocallers had deceived recipients with false claims that they represented legitimate companies.

80 Brian Fung & Chandelis Duster, FCC Proposes $5 Million Robocall Fine Against Right-Wing Operatives Jacob Wohl and Jack Burkman, CNN (Aug. 25, 2021), available at https://www.cnn.com/2021/08/25/politics/fcc-fines-jacob-wohl-jack-burkman/index.html (last visited May 17, 2023). This fine was accompanied by an effort to prosecute the duo for violating federal election laws, which is ongoing at the time of writing.

81 47 U.S.C. § 227(b)(3).

82 Ted Frank, Scary Stephen King Text Message Worth $175 in Class Action Settlement, press release, Competitive Enterprise Institute, available at https://cei.org/blog/scary-stephen-king-text-message-worth-175-in-class-action-settlement (last visited May 17, 2023). The payout was ordered per Satterfield v. Simon & Schuster Inc., 569 F.3d 946 (9th Cir. 2009).

83 Margaret A. Dale, Capital One to Pay Largest TCPA Settlement on Record, National Law Review (Aug. 19, 2014), available at https://www.natlawreview.com/article/capital-one-to-pay-largest-tcpa-settlement-record-0 (last visited May 17, 2023). The payout was ordered per In re Capital One Telephone Consumer Protection Act Litigation, 80 F.Supp.3d 781 (N.D. Ill., 2015).

84 Waller et al., supra note 12, at 364–365.

85 Barr v. Am. Ass’n. of Political Consultants, 140 S. Ct. 2335, 2364 (2020). This claim was made by Justice Gorsuch but without attribution, though the FTC has said the same. See Federal Trade Commission, Debt Collection, consumer information page (unknown date), available at https://www.ftc.gov/news-events/media-resources/consumer-finance/debt-collection (last visited May 17, 2023).

86 Griffith v. Consumer Portfolio Services, Inc., 838 F.Supp.2d 723, 728 (2011) (internal quotation marks omitted). This case involved a typical consumer complaint about debt collection robocalls by the defendant.

87 Soppet v. Enhanced Recovery, LLC, 679 F.3d 637, 638 (7th Cir. 2012) (concerning a complaint about debt collection calls received by innocent parties due to inaccurate phone number records maintained by the collection agency). In most cellular telephone plans during that period, listening to and then deleting one’s voicemail messages required an outgoing phone call to the service provider that resulted in per-minute charges, so robocallers inflicted a direct cost on the consumer when leaving messages.

88 Id. at 643 (emphasis added).

89 Id.

90 Pub. L. 114-74, §301(a)(1)(B) (2015), codified at 47 U.S.C. § 227(b)(1)(A)(iii).

91 Barr v. Am. Ass’n. of Political Consultants, 140 S. Ct. 2335, 2363–2364 (2020). These figures were cited by Justice Gorsuch but without attribution, and probably indicate totals at the end of a then-recent year.

92 Id. at 2364.

93 47 U.S.C. § 227(b)(1)(A)(iii) (2015) (emphasis added).

94 47 U.S.C. § 227(b)(1)(B).

95 Federal Communications Commission, In the Matter of Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, Declaratory Ruling, FCC 16-72, GN Docket No 02-278 (2016), at ¶ 1.

96 Id. at ¶ 15.

97 See supra note 49 and accompanying text.

98 Reardon, supra note 76.

99 Federal Communications Commission, Caller ID Spoofing, consumer information page (unknown date), available at https://www.fcc.gov/spoofing (last visited May 17, 2023).

100 Laura J. Nelson, FTC Hangs Up on Robocalls from “Rachel,” L.A. Times (Nov. 1, 2012), available at https://www.latimes.com/business/la-xpm-2012-nov-01-la-fi-tn-ftc-robocalls-credit-card-services-20121101-story.html (last visited May 17, 2023).

101 Reardon, supra note 76.

102 Federal Communications Commission, Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, Report and Order, 18 FCC Rcd 14014 (2003), at ¶ 165.

103 Federal Communications Commission, Rules and Regulations Implementing the CAN-SPAM Act of 2003, Report and Order, 19 FCC Rcd. 15927 (2004), at ¶ 14. See also Controlling the Assault of Non-Solicited Pornography and Marketing (CAN-SPAM) Act, Pub. L. No. 108-187, 117 Stat. 2699, codified at 15 U.S.C. § 7701–7713 (2003).

104 Waller et al., supra note 12, at 395.

105 Federal Trade Commission, FTC Announces Robocall Challenge Winners, press release (Apr. 2, 2013), available at https://www.ftc.gov/news-events/press-releases/2013/04/ftc-announces-robocall-challenge-winners (last visited May 17, 2023).

106 Hibbard, supra note 34, at 111–112.

107 Pallone-Thune Telephone Robocall Abuse Criminal Enforcement and Deterrence (TRACED) Act, Pub. L. 116-105, 133 Stat. 3274 (2019).

108 Caitlin Figueroa, The Pallone-Thune “TRACED Act”: Expanding Consumer Protection in the Fight against Robocalls, 32 Loyola Consumer L. Rev. 318, 319 (2020).

109 Pub. L. No. 116-105 at § 7(b)(3).

110 Id. at § 4(b)(1)(A).

111 Timothy B. Lee, Congress Passes Legislation Expanding Robocall Penalties, ArsTechnica (Dec. 19, 2019), available at https://arstechnica.com/tech-policy/2019/12/congress-slaps-robocallers-with-10000-penalty-per-call (last visited May 17, 2023).

The “SHAKEN” and “STIR” protocols are designed to detect common spoofing techniques that falsify the metadata behind the originating call information (commonly known as “caller ID”) that the recipient of a robocall can see on their phone, such as a false phone number from the recipient’s city or the name of a legitimate company or government agency. SHAKEN stands for “Signature-based Handling of Asserted information Using Tokens” and STIR stands for “Secure Telephony Identity Revisited.” See Federal Communications Commission, See Combating Spoofed Robocalls with Caller ID Authentication, consumer information announcement (unknown date), available at https://www.fcc.gov/call-authentication (last visited May 17, 2023).

Major telephone service providers were required to implement SHAKEN and STIR by June 2021. Early data suggests that this has cut down on the number of “spoofed” messages that appear to come from a phone number that the recipient trusts, but there has been little impact on other types of robocalls. See Reardon, supra note 76.

112 Pub. L. 111-331, 124 Stat. 3572 (2010).

113 Reardon, supra note 76.

114 California Telemarketer Fined $10M by FCC Over Political Ad, APNews (Nov. 18, 2020), available at https://apnews.com/article/pete-wilson-california-san-diego-a07ed022634a247235c7d18fc3a00419 (last visited May 17, 2023).

115 Pub. L. No. 116-105 at § 2(a)(1).

116 Id. at § 3.

117 Federal Communications Commission, Report to Congress on Robocalls and Transmission of Misleading or Inaccurate Caller Identification Information, agency report (Dec. 23, 2020), available at https://docs.fcc.gov/public/attachments/DOC-368957A1.pdf (last visited May 17, 2023), at 11–12.

A VoIP (Voice over Internet Protocol) network encodes a voice call into digital data and sends those data through the Internet, rather than traditional phone networks, for at least part of its journey between the sender and the recipient. The data is decoded back into audio so the recipient can hear a representation of the sender’s voice on a phone. Some software and services like Skype or Zoom enable this process to begin on the Internet, and similar techniques are used by the purveyors of robocalls. See Federal Communications Commission, Voice over Internet Protocol (VoIP), consumer information page (unknown date), available at https://www.fcc.gov/general/voice-over-internet-protocol-voip (last visited May 17, 2023).

118 Federal Communications Commission, Report to Congress on Robocalls, supra note 117, at 12. See also Federal Communications Commission, FCC, FTC Demand Gateway Providers Cut Off Robocallers Perpetrating Coronavirus-Related Scams from United States Telephone Network, press release (Apr. 3, 2020), available at https://docs.fcc.gov/public/attachments/DOC-363522A1.pdf (last visited May 17, 2023).

119 Federal Communications Commission, Report to Congress on Robocalls, supra note 117, at 14–16.

120 Hibbard, supra note 34, at 84–85.

121 Id. at 103.

122 According to Merriam-Webster Dictionary, the first known usage of the term robocall was in 1993. See Merriam-Webster, Learn More about Robocall, available at https://www.merriam-webster.com/dictionary/robocall#learn-more (last visited May 17, 2023). The term has been used regularly by the Federal Communications Commission in recent years; a search of the FCC website reveals hundreds of official agency documents that use the term, with the earliest usage appearing in the agenda of a 2015 commissioners’ meeting. It is uncertain whether this was agency’s first official use of the term, or whether that document is simply the oldest that is currently stored at the website.

123 The 2019 amended version of the statute includes some then-recent findings from FCC reports that justified continued enforcement of the prohibition on intrusive calls, and some of that text was adapted from the TRACED Act of the same year.

124 47 U.S.C. § 227(a)(1).

125 Federal Communications Commission, Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, supra note 102, at ¶ 132. An early predictive dialing device that stored phone numbers and scheduled prerecorded calls was invented for landline phones in 1984. See Simon van Zuylen-Wood, How Robo-Callers Outwitted the Government and Completely Wrecked the Do Not Call List, Wash. Post (Jan. 11, 2018), available at https://www.washingtonpost.com/lifestyle/magazine/how-robo-call-moguls-outwitted-the-government-and-completely-wrecked-the-do-not-call-list/2018/01/09/52c769b6-df7a-11e7-bbd0-9dfb2e37492a_story.html (last visited May 17, 2023).

126 Kristen P. Watson & Katherine E. West, What's in a Name? How the Definition of “Automatic Telephone Dialing System” and Ever-Changing Technology Required Supreme Court Intervention, 44 Am. J. of Trial Advocacy 293, 299 (2021).

127 Federal Communications Commission, Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, Report and Order, 23 FCC Rcd 559 (2008), at 563.

128 Satterfield v. Simon & Schuster Inc., 569 F.3d 946, 951 (9th Cir. 2009).

129 Meyer v. Portfolio Recovery Associates, 707 F.3d 1036, 1045 (9th Cir. 2012).

130 Federal Communications Commission, Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, Report and Order, 30 FCC Rcd 7961 (2015), at 7974.

131 ACA Int’l v. FCC, 885 F.3d 687, 697–698 (D.C. Cir. 2018).

132 Watson & West, supra note 126, at 307–308.

133 Id. at 293.

134 47 U.S.C. §§ 227(a)(1)(A)–227(a)(1)(B).

135 Steinmetz, supra note 49, at 5.

136 At least five cases have reached the Circuit Courts, brought by individuals who had received uninvited robocalls from a company that had intended to contact its own customers, whose phone numbers were in turn stored in that company’s databases. All the plaintiffs sought financial damages under the TCPA.

The Seventh and Eleventh Circuits ruled that companies that send mass messages to their own customers in this fashion have not violated the TCPA, because they used automated dialing systems that did not “store” the phone numbers themselves or dial numbers at random. See Gadelhak v. AT&T Services, Inc., 950 F.3d 458 (7th Cir. 2020); Glasser v. Hilton Grand Vacations Company, LLC, 948 F.3d 1301 (11th Cir. 2020). This interpretation was later upheld by the Supreme Court; see infra notes 143–145 and accompanying text.

The Second, Sixth, and Ninth Circuits ruled that companies that send mass messages to their own customers in this fashion have violated the TCPA, because the companies “store” customer phone numbers, regardless of the fact that the databases are not directly connected to the automated dialing software. See Duran v. La Boom Disco Inc., 955 F.3d 279 (2nd Cir., 2020); Allan v. Pa. Higher Education Assistance Agency, 968 F.3d 567 (6th Cir. 2020); Marks v. Crunch San Diego, LLC, 904 F.3d 1041 (9th Cir. 2018). This interpretation was later overturned by the Supreme Court; see infra note 144.

137 Steinmetz, supra note 49, at 5.

138 Duguid v. Facebook, Inc., 2017 WL 635117 (N.D. Cal. 2017).

139 Id. at 5.

140 Duguid v. Facebook, Inc., 926 F.3d 1146, 1151–1152 (9th Cir. 2019).

141 47 U.S.C. § 227(b)(1)(A).

142 926 F.3d at 1152.

143 Facebook, Inc. v. Duguid, 141 S.Ct. 193 (2020) (cert. granted). See also supra note 136.

144 Facebook, Inc. v. Duguid, 141 S.Ct. 1163, 1173 (2021) (emphasis added).

145 Id. at 1170–1171. Here the high court noted that it was overturning the aforementioned rulings from the Second, Sixth, and Ninth Circuits; see supra note 136.

146 Watson & West, supra note 126, at 318–319.

147 Id. 319–320.

148 U.S. Const. amend. I.

149 Moser v. FCC, 46 F.3d 970, 975 (9th Cir. 1995) (a challenge from the telemarketing industry claiming restricted speech).

150 Destination Ventures Ltd. v. FCC, 46 F.3d 54, 56 (9th Cir. 1995) (a challenge from an advertiser claiming that the TCPA was a commercial speech restriction).

151 For an introduction to this exception, see supra notes 90–92 and accompanying text.

152 According to its promotional materials, the American Association of Political Consultants is a “multi-partisan organization of political and public affairs professionals dedicated to improving democracy” and consists of “political consultants, media consultants, pollsters, campaign managers, corporate public affairs officers, professors, fund-raisers, lobbyists, congressional staffers and vendors.” See American Association of Political Consultants, About Us, available at https://theaapc.org/about-us (last visited May 17, 2023).

153 This was noted later by the Fourth Circuit when the initial District Court ruling was appealed. American Association of Political Consultants, Inc. v. Federal Communications Commission, 923 F.3d 159, 159 (4th Cir. 2019).

154 Steinmetz, supra note 49, at 4.

155 Any law with an impact on the content or viewpoint of speech is subjected to the strict scrutiny test when that law is challenged in court. The law in question must attempt to achieve a compelling governmental interest, it must be narrowly tailored in relation to that interest, and it must be the least restrictive method to attain that interest. While the present discussion is about free speech, this is the judicial process for any law with an impact on Constitutional rights. The strict scrutiny test was developed by the Supreme Court in the mid-20th century, particularly in U.S. v. Carolene Products Co., 304 U.S. 144 (1938) (concerning restrictions on interstate shipping) and Skinner v. Oklahoma, 316 U.S. 535 (1942) (concerning the forced sterilization of criminals).

156 American Association of Political Consultants v. Sessions, 323 F.Supp. 3d 737, 743–745 (E.D.N.C. 2018).

157 Mims v. Arrow Fin. Servs., 565 U.S. 368, 372 (2012).

158 Carey v. Brown, 447 U.S. 455, 471 (1980).

159 323 F.Supp. 3d at 744.

160 American Association of Political Consultants, Inc. v. Federal Communications Commission, 923 F.3d 159, 161 (4th Cir. 2019).

161 Id. at 162–163.

162 For an introduction to the strict scrutiny test, see supra note 155.

163 An “underinclusive” speech-oriented regulation restricts one particular topic without explaining how that topic deserves more restriction than any other topic. Thus, depending on one’s interpretation, such a regulation restricts too little speech and indirectly damages the governmental interest through omission. Reed v. Town of Gilbert, Ariz., 576 U.S. 155, 172 (2015); Cahaly v. Larosa, 796 F.3d 399, 405 (4th Cir. 2015).

The underinclusiveness doctrine is often used by courts to evaluate the “fit between a government’s means and its ends” when a speech-related restriction is enacted. See Erwin Chemerinsky, Constitutional Law: Principles and Policies 702 (5th Ed. 2015). The doctrine is not typically used to strike down restrictions as unconstitutional, but is instead used to determine the interests that the government is trying to protect. See Clay Calvert, Underinclusivity and the First Amendment: The Legislative Right to Nibble at Problems After Williams-Yulee, 48 Ariz. St. L.J. 525, 530–531 (2016).

164 923 F.3d at 167–168.

165 Id. at 169, n.10.

166 One possible solution here is to inform debtors via the initial loan’s paperwork that they may receive debt collection calls in the future, though the court did not speculate on such hypotheticals.

167 923 F.3d at 169. The Supreme Court has ruled that the government is immune from the prohibitions of the TCPA, though there is some confusion about the government’s use of contractors for its own purposes; see supra notes 95–96 and accompanying text.

168 923 F.3d at 171.

169 See supra note 89 and accompanying text.

170 Barr v. Am. Ass’n. of Political Consultants, 140 S.Ct. 812 (2020).

171 Barr v. Am. Ass’n. of Political Consultants, 140 S. Ct. 2335 (2020). In the midst of four different written opinions, Justice Breyer was the only one to call the decision by the court a “plurality.” Id. at 2358.

172 Id. at 2345–2356.

173 Id. at 2356–2357. The intermediate scrutiny test is a less rigorous counterpart to strict scrutiny, and is used for laws that are suspected of restricting the rights of certain groups or industries as opposed to everyone. The main difference is the use of the more easily proven “important government interest” in the intermediate scrutiny test, as opposed to the more demanding “compelling” in the strict scrutiny test. The Supreme Court first applied the intermediate scrutiny test to a speech-related dispute in Craig v. Boren, 429 U.S. 190 (1976) (reviewing a statute with different requirements based on gender).

174 140 S. Ct. at 2363–2365.

175 Id. at 2357–2363.

176 David L. Hudson Jr., Barr v. American Association of Political Consultants (2020), The First Amendment Encyclopedia, available at https://mtsu.edu/first-amendment/article/1855/barr-v-american-association-of-political-consultants (last visited May 17, 2023).

177 Id.

178 Since 1936, the Supreme Court’s policy has been to address Constitutional issues only when necessary and if there is no other way to resolve the dispute in the case at hand. Ashwander v. Tennessee Valley Auth., 297 U.S. 288, 341 (1936) (J. Brandeis, concurring).

179 140 S. Ct. at 2346.

180 Id. at 2348.

181 Id.

182 Id. at 2348–2349 (emphasis added).

183 Id. at347.

184 Id. at 2355.

185 Id. at 2364 (some internal quotation marks omitted) (J. Gorsuch, concurring in part).

186 Id.; citing Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520, 547 (1993).

187 140 S. Ct. at 2364.

188 Mainstream Marketing Services, Inc. v. FTC, 358 F.3d 1228 (10th Cir. 2004). See also supra notes 67–68 and accompanying text.

189 140 S. Ct. at 2366–2367.

190 The TCPA’s focus on privacy as written by Congress and enforced by the regulatory agencies is discussed in the second section supra.

191 140 S. Ct. at 2356–2357 (J. Sotomayor, concurring in part).

192 Id. at 2357.

193 Id. at 2356–2357. For an introduction to the intermediate scrutiny test, see supra note 173.

194 See supra notes 84–89 and accompanying text.

195 140 S. Ct. at 2358 (J. Breyer, dissenting in part).

196 Id. at 2359.

197 See supra note 154 and accompanying text.

198 140 S. Ct. at 2348.

199 Id. at 2352; citing 47 U.S.C. § 608 (“If any provision of this chapter or the application thereof to any person or circumstance is held invalid, the remainder of the chapter and the application of such provision to other persons or circumstances shall not be affected thereby”). The high court concocted a complex explanation for the applicability of this provision to the present case: “The ‘chapter’ referred to in the severability clause is Chapter 5 of Title 47. And Chapter 5 in turn encompasses § 151 to § 700 of Title 47, and therefore covers § 227 of Title 47 [TCPA], the provision with the robocall restriction and the government-debt exception.”

200 140 S. Ct. at 2352. Kavanaugh cited Free Enterprise Fund v. Public Co. Accounting Oversight Bd., 561 U.S. 477 (2010) as precedent for the “presumption of severability.”

201 140 S. Ct. at 2351.

202 Id. at 2349.

203 See supra note 182 and accompanying text.

204 Steinmetz, supra note 49, at 4.

205 140 S. Ct. at 2366.

206 See supra note 154 and accompanying text.

207 323 F.Supp. 3d 737, 740 (citing Pub. L. 102-243, 105 Stat. 2394 (1991), at §2(11)). This citation is to an early version of the TCPA that was eventually codified at 47 U.S.C. § 227.

208 The TCPA’s focus on privacy as written by Congress and enforced by the regulatory agencies is discussed in the second section supra.

209 H.R. 5757, 110th Cong. (2008).

210 Id. at § 2(2).

211 See supra note 109 and accompanying text.

212 Frisby v. Schultz, 487 U.S. 474, 484–488 (1988).

213 Caleb J. Norris, The Constitutionality of Arkansas’s Prohibition on Political Robocalls, 34 UALR L. Rev. 797, 808 (2012). A time/place/manner restriction, in which government attempts to control when or where or how a certain type of speech is conducted while not outlawing the topic altogether, is often tolerated by the courts if it can survive the strict scrutiny test. The Supreme Court developed this type of analysis in Cox v. Louisiana, 379 U.S. 536 (1965) (concerning a state statute that attempted to restrict acts of civil disobedience during the civil rights era).

214 R. Michael Hoefges, Telemarketing Regulation and the Commercial Speech Doctrine, 32 J. of Legislation 50, 58–59 (2006).

215 Jason C. Miller, Regulating Robocalls: Are Automated Calls the Sound of, or a Threat to, Democracy?, 16 Mich. Telecom. & Tech. L. Rev. 213 (2009).

216 Van Bergen v. Minnesota, 59 F.3d 1541, 1554-1556 (8th Cir. 1995) (concerning a state statute restricting robocalls).

217 Id. at 1552.

218 See supra notes 67–68 and accompanying text.

219 Norris, supra note 213, at 810.

220 Miller, supra note 215, at 243–244.

221 Reardon, supra note 76.

222 U.S. Department of Justice, District Court Orders Injunctions against Two Telecom Carriers Who Facilitated Hundreds of Millions of Fraudulent Robocalls to Consumers in the United States, press release (Mar. 27, 2020), available at https://www.justice.gov/opa/pr/district-court-orders-injunctions-against-two-telecom-carriers-who-facilitated-hundreds (last visited May 17, 2023).

223 Tim Levin, FCC Fines Telemarketers a Record $225 Million for Making 1 Billion Robocalls in 5 Months, Business Insider (Mar. 18, 2021), available at https://www.businessinsider.com/fcc-fine-robocalls-health-insurance-scam-2021-3 (last visited May 17, 2023).

224 See supra note 175 and accompanying text.

225 See supra notes 67–69, 86–89, and accompanying text.

226 See supra note 178 and accompanying text.