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Playing Politics: When the TCPA Becomes Mixed Up In Politics All Bet(o)s are Off

“Real News” network Fox News carried an interesting piece over the weekend regarding text messages sent promoting Texas Democrat Beto O’Rourke’s campaign. The story can be found here. 

As Fox News relates matters:

A Texas man grew so frustrated over receiving text messages from the U.S. Senate campaign of U.S. Rep. Beto O’Rourke, D-Texas, that he’s taking the organization to court.

Hmmm…

As TCPAland dwellers know, these class action suits are generally much more about the almighty dollar than about any actual frustration or harm from text messages. And where money and politics intersect, look out.

Indeed, the TCPA has a long and colorful history will political campaigns. In stories you won’t find on Fox News for some reason, the Faith and Freedom Coalition (“FFC”)–allegedly some sort of Conservative-leaning PAC– was recently sued for blasting Florida residents with texts urging Senator Bill Nelson to support the Kavanaugh confirmation, and the Trump campaign was rather famously embroiled in a TCPA kerfuffle in Thorne v. Donald J. Trump for President, Inc., Case No. 16-cv-4603 (N.D. Ill). In Thorne the now-president’s campaign allegedly sent unsolicited text messages to thousands of folks reading:

Reply YES to subscribe to Donald J Trump for President. Your subscription will help Make America Great Again! Msg&data rates may apply.

Although I opined back in 2016 that the President’s experience with the TCPA would make him more likely to reign the statute in, he apparently dealt with the case in Trumpian fashion– as Politico explained last year the President’s campaign appears to have bought off the named plaintiffs in that one. Probably not a bad decision given the venue and the facts.

Unsurprisingly, the Obama campaign also had a run in with the TCPA. Indeed, the Obama for America campaign faced a nearly identical lawsuit in Florida during Obama’s time in office. See Shamblin v. Obama for Am., No. 8:13-cv-2428-T-33TBM, 2015 WL 1754628, at *5 (M.D. Fla. Apr. 17, 2015). Unlike the apparent “buy ’em off” approach of the Trump Campaign, however, the Obama For America folks actually battled the Shamblin plaintiff to the mat–defeating certification in a decision that still has major ramifications for TCPAland to this day.

But complaints about political robocalls are not limited to national office, similar battles continue to rage at the local level as well. Indeed, the FCC has been forced to become comically vocal on the subject–Chairman Wheeler’s administration famously issued public notices reminding political campaigns that they had to follow the TCPA or risk suit. (Check it out here FCC Public Notice re Political Robocalls.) But campaigns always push back asserting their First Amendment rights– and sometimes successfully. For instance, not long ago Queenie reported on a First Amendment challenge that met with success in Wyoming where a state law corollary to the TCPA was found unconstitutional.

As for this newest suit against “everyone’s pal” Beto, Plaintiff Sameer Syed alleges receipt of 9 text messages–content unalleged–without consent. The complaint contains all of the usual boilerplate respecting ATDS usage and a typical failsafe class consisting of
“all individuals with addresses in the State of Texas, to whom Defendant sent text messages to secure votes for Beto O’Rourke’s campaign for U.S. Senate, without obtaining their permission to send text messages to their cellular telephones…”  The complaint can be found here: Syed v. Beto For Texas

Since the case was just filed Friday and Fox News scooped even TCPAland with the story over the weekend its not too far-fetched to assume that Syed’s counsel fed the network the story promptly after filing. (I’m probably just jealous they didn’t send me the complaint.)  Notably Syed is represented by something called Shawn Jaffer Law Firm PLLC, which I have never come across before. The firm’s website already has a menu item entitled “Beto Class Action” though.  Fun.

While it remains to be seen whether the Syed lawsuit has any merit, we can expect Beto’s campaign will apply the same First Amendment arguments leveraged by the campaigns of Trump and Obama before him in challenging the lawsuit. Yet another chapter in the endless battle of good versus evil that plays out everyday in TCPAland. (Editor’s note: The side that is “good” and “evil” may be selected by the reader according to their own political persuasion, which is totally how politics works in American in 2018. Also, I’m definitely on your team, whichever that is, especially if you’re somehow a little offended right now.)

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About this Author

Eric Troutman, Womble Dickinson, TCPA Litigation Attorney
Attorney

Eric is one of the country’s prominent class action defense attorneys and is nationally-recognized in Telephone Consumer Protection Act (TCPA) litigation and compliance.  He has served as lead defense counsel in more than 50 national TCPA class actions and has litigated nearly a thousand individual TCPA cases in his role as national strategic litigation counsel for major banks and finance companies. He also helps industry participants build TCPA-compliant processes, policies, and systems.

Eric has built a national litigation practice based upon...

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