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Robocaller Given a New Route to Fight State Ban

CHICAGO (CN) - A ban on robocalling in Indiana may trample the free-speech rights of a political group, but federal law does not pre-empt it, the 7th Circuit ruled.

"Legislators in the state of Indiana believe that the bulk of its citizens find automated telephone messages to be an annoyance, and one worthy of government protection," the 23-page judgment begins.

Indeed, the Federal Trade Commission fields 200,000 complaints about so-called "robocalls" every month, and the agency offered a $50,000 reward in 2012 to any person who could find a solution to stop these unwanted calls.

Indiana's solution to the problem was the enactment of the Automated Dialing Machine Statute, which bans autodialed calls unless the receiver has previously consented to the call.

But Patriotic Veterans, an advocacy group that uses robocalls to inform veterans about political issues, claims that the law violates the First Amendment, at least as it applies to political messages, and is pre-empted by the Federal Telephone Consumer Protection Act (TCPA).

Agreeing that the federal TCPA pre-empts Indiana's law, a federal judge in Indianapolis granted the nonprofit an injunction without reaching the group's constitutional claims.

A three-judge panel of the 7th Circuit reversed last week, however, finding that the TCPA's preemption clause does not pre-empt state laws against robocalls, even though this reading may lead to an "odd result."

Indeed the savings clause of the TCPA says state laws that impose more restrictive intrastate regulations on automatic dialing systems, or the total prohibition of both intra- and interstate automatic dialing systems shall not be preempted by federal law.

While this may seem like an odd regulation, "Congress may have determined that states could pass regulations with flat-out prohibitions but not regulations with more restrictive interstate constraints," Judge Ilana Rovner wrote for the court. "An absolute prohibition makes the rules on the use of autodialers easy to follow on a state-by-state basis (and, one might argue, so do black and white rules requiring consent), but asking autodialing companies to comply with a web of fifty different state regulatory systems with different requirements about the permissible hours and types of call recipients might create havoc." (Parentheses in original.)

But whatever Congress' rationale was, "the court's job is not to fix it," the 23-page ruling continues.

Congress undoubtedly intended to protect First Amendment freedoms with its legislation, but "such an objective does not turn the legislation into one that has the purpose of protecting constitutional concerns," Rovner added.

The TCPA intended primarily to protect residential telephone customers' privacy, and "the fact that the legislature attempted to do so without violating the free speech rights protected by the First Amendment does not turn the legislation into one with the purpose and objective of protecting non-commercial robocalls," she wrote.

The circuit remanded the case for an evaluation whether the Indiana law violates the nonprofit's First Amendment rights.

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