The Big Chill: How The FCC’s Reading Of The TCPA Violates The First Amendment And Demands The Impossible

Drinker Biddle’s TCPA team has been invited to contribute a regular column to Law360. In the first such column, partners Bradley Andreozzi, Michael Daly, and Justin Kay discuss how the FCC’s interpretations of the TCPA violate the First Amendment rights. They write:

For an agency charged with regulating communications, the Federal Communications Commission has shown itself to be remarkably indifferent to First Amendment rights. In its recent brief in the consolidated appeal from its July 2015 omnibus ruling on the Telephone Consumer Protection Act, the FCC blandly assured the D.C. Circuit that “[e]very court” has held that the TCPA’s restrictions “easily pass muster under the First Amendment.” FCC Brief at 73-74. But it all but ignored that, rather than “directly challenge the TCPA’s constitutionality,” the petitioners in that appeal challenge the FCC’s “interpretations of the statute.” Id. at 72-73. On that issue, the D.C. Circuit will be writing on a clean slate, and the First Amendment challenges are serious.

They then highlight three serious First Amendment concerns, specifically that the FCC’s: (1) healthcare exemption restricts necessary speech; (2) recycled numbers ruling demands the impossible; and (3) ATDS interpretation is unconstitutionally vague. 

Read: “How FCC’s Reading Of TCPA Violates The 1st Amendment”