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Political Calls Remain a Target of Litigation

woman standing by at political campaign by voting ballot smiling doing phone gesture with hand and fingers like talking on the telephone and holding a patriotic button that says, "vote"

Posted by Chris Alarie on Tue, 09/06/2022 - 13:52

Two months before election day, this midterm election season is once again producing a large volume of political calls and text messages as well as resulting Telephone Consumer Protection Act (TCPA) litigation. Following the Supreme Court's decision in Facebook v. Duguid, it would seem that many of the most frequently used techniques for political outreach are safe from TCPA complaints but that has not stopped plaintiffs from filing litigation.

The Republican National Congressional Committee (NRCC) was on the receiving end of a TCPA class action. The plaintiff in Anthony v. National Republican Congressional Committee is alleging violations of the TCPA’s automatic telephone dialing system (ATDS) restrictions stemming from NRCC campaign text messages asking “Trump patriots” to donate to the party’s congressional campaigns. Considering how courts have applied SCOTUS’s narrow ATDS definition from the Facebook case to mean that text message campaigns generally do not qualify as autodialers, it is unlikely that this litigation will succeed. Indeed, in January, a plaintiff pursuing a similar complaint against the NRCC’s equivalent in the Senate dropped his ATDS allegations and unsuccessfully attempted to pursue allegations of Do Not Call (DNC) list violations.

Since TCPA complaints are one of the last remain bastions of bipartisanship in American life, there is also notable TCPA litigation against a Democratic Congresswoman. What makes this case, which we first covered back in January, especially notable is that its alleged TCPA violations do not result from campaign messages. Instead, the plaintiff is alleging that Congresswoman Jackie Speier violated the TCPA’s restrictions on the use prerecorded calls with calls that her office made to constituents in order to inform them about town hall meetings she was conducting. The TCPA’s prerecorded call restrictions are separate from the ATDS restrictions and, thus, not affected by the Facebook decision. However, these sorts of non-campaign governmental messages should be exempt from the TCPA. In early July, the Northern District of California Court came to this exact conclusion and dismissed the complaint against Congresswoman Speier.