Not So Fast: Political Organizations Amend Complaint Challenging Constitutionality of TCPA in Response to Attorney General’s Motion to Dismiss

By Andrew C. Glass, Gregory N. Blase, and Roger L. Smerage

A bi-partisan coalition of five political groups, seeking a declaration that the Telephone Consumer Protection Act (TCPA) violates the First Amendment, recently filed an Amended Complaint in American Association of Political Consultants, Inc., et al. v. Lynch, Case No. 5:16-cv-00252-D (E.D.N.C.).  The Amended Complaint addresses purported deficiencies in the original Complaint that Attorney General Loretta Lynch raised in her motion to dismiss the case.

The Amended Complaint adds the Federal Communications Commission (FCC) as a defendant and alleges that the FCC—in conjunction with Congress—intended to “create content-based exemptions to the cell phone call ban based both on the content of the speech involved and the identity of certain favored speakers.” In response to the argument that the district court lacks subject matter jurisdiction in light of the Hobbs Act, 28 U.S.C. § 2342(a), the Amended Complaint asserts that (1) the action is challenging a “federal statute, as it is content-based and regulates Plaintiffs’ fully-protected, political speech,” and not the FCC orders and rules implementing the TCPA, and thus (2) it is not subject to the Hobbs Act’s strict procedural requirements applicable to challenges to FCC rules.

Additionally, in an attempt to demonstrate standing, the plaintiffs attached to the Amended Complaint a series of revised declarations of various representatives of the groups bringing suit. The declarations, unlike those submitted with the original complaint, explain how the TCPA’s prohibitions on calls to cellular telephones using automatic telephone dialing systems, prerecorded voice messages, or automated voice messages impact the calling practices of the plaintiffs’ members.

Lynch’s response is due to be filed on August 19, 2016; the FCC’s response will be due within 60 days of being served with a summons and the Amended Complaint.

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