On Friday, the Attorney General of the United States responded to a lawsuit brought by a bi-partisan coalition of political groups challenging the constitutionality of the Telephone Consumer Protection Act, 47 U.S.C. § 227 (“TCPA”). In American Association of Political Consultants, Inc., et al. v. Lynch, Case No. 5:16-cv-00252-D (E.D.N.C.) (previously discussed here) the plaintiffs seek a declaration that the TCPA violates the First Amendment. The lawsuit asserts that the statute imposes a content-based restriction on speech that fails to pass strict scrutiny.
In her response to the lawsuit, the Attorney General argues that the district court lacks subject matter jurisdiction over it. Specifically, Lynch contends that the lawsuit actually challenges Federal Communications Commission (“FCC”) orders interpreting and enforcing the TCPA, not the TCPA itself, such that the Hobbs Act, 28 U.S.C. § 2342(a), divests the district court of jurisdiction in favor of original jurisdiction in the United States Courts of Appeals for the District of Columbia.
Even if the district court had jurisdiction to consider the plaintiffs’ challenge, however, the Attorney General asserts that the case must be dismissed because the plaintiffs lack Article III standing. Lynch argues that the plaintiffs failed to allege any injury-in-fact because they did not allege that they use, or intend to use, either an autodialer or a pre-recorded voice to make calls to cellular telephones. Instead, Lynch contends that the plaintiffs allege that they make calls to cellular telephones generally in the course of their business, which is not prohibited by the TCPA, and that the declarations attached to the complaint suggest that the plaintiffs’ members call prospective donors through “human intervention,” rather than through technologies regulated by the TCPA.
The Attorney General also argues that the plaintiffs lack standing because any alleged injury is not redressable by federal courts. Lynch points to the fact that the plaintiffs’ theory of unconstitutionality is based on the impact of a 2015 TCPA amendment that exempts calls made in the attempt to collect debt owned or guaranteed by the federal government. As such, the only redress available would be severance and invalidation of the amendment. Yet, the Attorney General argues that in light of their allegations, the plaintiffs are not covered by the amendment, such that this redress would not remedy their purported injury. Moreover, the desired relief—an injunction against the Attorney General—would be meaningless according to the plaintiffs, because the FCC, not the Attorney General, enforces the TCPA.
It remains to be seen how the district court will view the Attorney General’s arguments. The plaintiffs’ response to Lynch’s motion is currently due to be filed on August 5, 2016.