A federal District Court (S.D. Ind.) today rejected a political polling group's request to enjoin Indiana’s autodialer statute (FreeEats.com, Inc. v. Indiana, S.D. Ind. Case No. 1:06-cv-1403-LJM-WTL (Oct. 24, 2006)).  (Access a copy of the order (.pdf) here.)

Indiana enacted a law in 1998 regulating the use of autodialers, requiring callers to use a live operator to announce and obtain consent with respect to delivery of automated messages.  The Telephone Consumer Protection Act (47 U.S.C. 227) contains a similar prohibition on the use of autodialers.  However, the FCC created an exemption for “calls conducting research, market surveys, political polling or similar activities which do not involve solicitation . . . .”   FreeEats, an out of state survey and database company, filed suit to enjoin enforcement of  Indiana’s automated dialer statute.  Previously, Indiana had brought a state court enforcement again against one of FreeEats’ clients. 

The court first declined to abstain based on the pending state court proceeding.  Abstention analysis is complex and nuanced, so I don’t have much to say about the court’s conclusion here.  (For what it’s worth though, the contrary result – a stay – would have been equally defensible.  The court relied on the fact that “FreeEats’ activities involve political speech” and the state forum would not likely resolve the issues prior to the general election, “which is just weeks away.”).  On to the substantive claims.  

Preemption

The court rejected FreeEats’ preemption arguments.  It applied the presumption against preemption based on the fact that at the time of enactment of the TCPA states for several years had been regulating telecommunications viewed as harmful to residents.  The court cited to the savings clause (47 U.S.C. § 227(e)) as Congressional expression of intent to preserve state regulation in this area.  The court also rejected FreeEats’ field preemption argument based on the savings clause (section 227).  Finally, the court found no conflict-based preemption because the state law does not “stand as an obstacle to the accomplishment and execution” of the purpose of the federal law.  The TCPA was enacted to provide minimum levels of protection, and enactment of more stringent state laws would not thwart the accomplishment of the TCPA’s objectives.  As the court notes, it’s quite possible for FreeEats to comply with both federal and state law.  Finally, it’s worth noting that this isn’t the first time FreeEats has lost this exact argument.  The court in footnote 8 approvingly cites to the Supreme Court of North Dakota (in Stenehjem v. FreeEats.com, Inc., 712 N.W.2d 828 (N.D. 2006), cert. denied, 549 U.S. ___ (Oct. 10, 2006)) which reached the same conclusion on this issue.  

Commerce Clause

The court initially notes FreeEats' activities may not even involve interstate commerce, given that FreeEats is arguably trying to promote political messages.  Nevertheless the court considers and rejects the commerce clause challenge.  The law effects no facial discrimination against out of state businesses, nor does it favor in state businesses.  The court finds that the law does not impose an excessive burden on commerce (relative to the benefits).  Conceptually this is the same analysis employed by courts rejecting state regulation of unsolicited commercial email sent by non-residents to residents of the state (such as State v. Heckel, 143 Wash. 2d 824, 24 P.3d 404 (2001)).  No big surprise here. 

First Amendment

FreeEats argued that since its speech is political in nature, the autodialer law must pass strict scrutiny.  The court rejects this, and views the regulation through a reasonable time, place, and manner lens.  The court adopted the reasoning in Van Bergen v. Minnesota, 59 F.3d 1541 (8th Cir. 1995), which held that autodialer restrictions were valid time, place, and manner restrictions.  The Eighth Circuit also relied on the non-public nature of the phone system. 

This conclusion is quite reasonable.  The law does not ban speech – it merely ensures that the speaker is only allowed to convey the message to those who would willingly receive it.  (Think of the cases upholding regulation of unsolicited snail mail here.)  The recipients have privacy, and maybe even First Amendment interests, in regulating the flow of information into their homes.  The autodialer law is a reasonable way of accommodating their interests, while not shutting down the communications altogether.  

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Bottom line:  the decision is not really remarkable on the First Amendment or the Commerce Clause front.  It probably reaches the correct result as far as preemption.  The only place one can fault the decision is in its abstention analysis.  Given that the abstention analysis requires the balancing of various factors, and given that the court ultimately reached the right result, this is a minor quibble at best.

See also: Political E-Mail: Protected Speech Or Unwelcome Spam?, 2003 Duke L. & Tech. Rev. 1 (2003).  For some other background on the parties involved, see here:  “Swiftboat 2.0 Group Loses Court Challenge”.