“Congress Delivered”: State AGs Heap Praise On TCPA In Amicus Brief to Supreme Court in Facebook ATDS Fight
Monday, October 26, 2020

Its not very often you read the phrase “North Carolina, Indiana and 35 other states.”

In most contexts, highfalutin coastal states like California, New York and Massachusetts would object to the “other states” reference, but when it comes to battling robocalls, the State AGs of North Carolina and Indiana have certainly earned a special mention.

Unsurprisingly, perhaps, then it is the Indiana Attorneys General’s Office and the North Carolina DOJ that took the lead in drafting and submitting an Amicus Brief to the U.S. Supreme Court on behalf of the 37 we-dont-care-what-the-federal-government-thinks states that want the Supremes to adopt a broad TCPA ATDS definition. Their brief can be found here: AGs Brief.

The brief is a bit odd.

The Brief starts by pointing out that “at least forty-one States and the District of Columbia currently have enforceable prohibitions or restrictions on the use of autodialer devices.” That seems to cut against the need for a superfluous federal enactment addressing the same subject matter– so the States start their argument  by essentially pointing out that the TCPA isn’t really all that special in the Universe after all. Interesting.

Then, after pointing out that the TCPA does not preempt state law, the Brief argues that Congress must have meant to copy what the states were doing since it would make no sense for it to intentionally “depart from these state laws by adopting a narrower definition of an autodialer device in the TCPA. After all, it was Congress’s explicit aim to supplement—not to shrink—preexisting state laws.” But Congress wasn’t “shrinking” anything by passing the TCPA–again, no preemption here as the brief recognizes– and if Congress had merely copied existing law it wouldn’t be “supplementing” it. (To “supplement” mean to introduce something new and different-unlike the state law provisions that purportedly covered devices that dialed from a stored list of numbers.) So, again, the Brief seems to argue against its own position.

So far so good–ha.

The brief goes on to till the well-worn fields of grammarian analysis concluding- as you’d expect– that the comma placement doesn’t matter and the sense of the words requires a broad ATDS reading. Were have we seen that argument before? 

But the real crux of the argument is this- the TCPA is big and bad and important and we really need it to stop the bad guys. Here’s the legislative history part:

But Congress worried that a federal law was needed because state laws might prove less than fully effective at redressing interstate conduct. Given potential practical difficulties with interstate enforcement of state law, a committee report concluded that “federal legislation is needed to . . . relieve states of a portion of their regulatory burden.” Id. The States even asked Congress for supplemental federal legislation. S. Rep. No. 102-178, at 3, reprinted in 1991 U.S.C.C.A.N. 1968, 1970.

Congress delivered. By enacting the TCPA, Congress provided a uniform, federal ban on automated calls. 47 U.S.C. § 227(b)(1)(A). In the process, Congress also empowered the States, on their residents’ behalf, to enforce the federal ban by suing illegal robocallers. Id. § 227(g)(1).

And here’s the “state’s can’t do it without the TCPA, except they probably mostly can” part:

By narrowing the TCPA’s definition of an autodialer, Facebook would limit the universe of cases where States can pool their resources and bring enforcement actions—across multiple States or alongside the federal government—to enforce the TCPA’s protections against the most abusive robocall practices. Indeed, without a federal-law violation to prosecute, States would be left to file separate, piecemeal lawsuits across a number of different state courts. To be sure, state enforcement actions of this kind can still be effective, but a federal claim under the TCPA is a particularly powerful tool for States seeking to enforce the law against the most abusive robocallers.

So there you have it. According to the State AGs: the TCPA doesn’t preempt their equally powerful state law enactments that Congress was just trying to copy anyway, and without the TCPA state enforcement actions would still be plenty effective and we don’t need the feds because we can do this job ourselves.

At least that’s how I read it.


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