Trilogy of Supreme Court Cases Highlight Deficiencies in Anti-Robocall Statute

Abstract

While the Federal Communications Commission carries a diverse policy portfolio, one issue in particular remains at the top of consumers’ collective mind year after year: reducing the number of unwanted robocalls. Robocalls have even become pernicious and pervasive enough to draw the Supreme Court’s attention. Earlier this month, the Court decided Barr v. American Association of Political Consultants, Inc. In that case, the Court struck down a portion of the Telephone Consumer Protection Act (TCPA), a 1991 statute intended to protect consumers from robocalls, because it violated the First Amendment. Three days later, the court granted certiorari in a second case, Facebook, Inc. v. Duguid, which involves interpretation of an ambiguous statutory definition within the TCPA. These follow on the heels of a third case, PDR Network LLC v. Carlton &Harris Chiropractic Inc., which was decided last year and involved a conflict between the FCC and the judiciary about a different TCPA provision.

While the three cases come in very different postures, all are in some way wrestling with the statutory text – text that was awkward when written thirty years ago and has grown increasingly problematic over time. As technology advances and the world has grown ever more connected, the TCPA has proven increasingly incapable of solving the robocall problem.

Recent FCC initiatives have shown the possibility of technical solutions to the robocall problem. Congress should update the TCPA to reflect the realities of the modern telecommunications marketplace, and consider focusing on technological solutions, rather than litigation, to protect American consumers.