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Federal judge finds U.S. law preempts state 'robo-call' statute

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The state is not able to prevent out-of-state entities from placing political calls to residents within Indiana because of an existing federal law, according to a federal judge’s ruling on Indiana’s auto-dialer statute.

U.S. Judge William Lawrence in the Southern District of Indiana issued an eight-page decision late Tuesday in Patriotic Veterans v. State of Indiana, No. 1:10-CV-723, ruling that the 23-year-old state statute is preempted by the federal Telephone Consumer Protection Act.

Filed June 10, 2010, this case is one of a handful of similar suits that have played out in state and federal courts during the past several years about the Indiana Auto-Dialer Statute that passed in 1988 but largely went unenforced until 2006.

This case involves an Illinois-based nonprofit that sued Indiana on claims that the state law violates the group’s First Amendment rights by not allowing it to make political calls leading up elections. Patriotic Veterans claimed the Indiana law is preempted by the similar but more lenient federal TCPA. Unlike the state statute banning all pre-recorded telemarketing calls unless the consumer has given consent, the federal law makes exceptions for nonprofit groups, telephone carriers, and politicians.

In his ruling, Judge Lawrence granted the plaintiff’s motion for summary judgment, denied the state’s motion and granted a permanent injunction preventing the enforcement of Indiana Code 24-5-14. In footnotes, the judge wrote that he’s limited his decision to the preemption issue and is not addressing the First Amendment claims, and that he’s declining to enter a broader injunction that would apply to more than political messages even though the court’s ruling could support that.

Judge Lawrence found that the TCPA doesn’t contain an express preemption clause, but rather has a savings clause that applies to specific intrastate requirements and regulations. Legislative support also proves that intent, he wrote.

“The language of the savings clause coupled with the consistent legislative history leads the Court to determine that the TCPA was enacted with the purpose of establishing exclusive regulations relating to the interstate use of automatic telephone dialing systems, as well as establishing regulations that would apply to their intrastate use unless a particular state chose to enact (or had already enacted) more stringent regulations,” Judge Lawrence wrote. “To read the TCPA otherwise would render the word ‘intrastate’ within the savings clause entirely meaningless and thus be inconsistent with the ‘cardinal principle of statutory construction that we must give effect, if possible, to every clause and word of a statute.’ If Congress intended for the TCPA to have no preemptive effect, it would not have included the word ‘intrastate’ in the savings clause; the fact that it did indicates that it intended for state laws relating to interstate use of automatic telephone dialing systems… to be preempted, while more restrictive intrastate laws would be enforceable.”

Judge Lawrence disagreed with the state’s interpretation of the TCPA language that it doesn’t apply to the state statute, and although the wording and grammatical structure is awkward, the Congressional intent is clear that Indiana’s law is preempted in this situation.

How all this factors into the broader constitutional questions remains unclear. The First Amendment claims could be addressed on appeal in the federal courts, while the Indiana Supreme Court hasn’t yet decided the case of State of Indiana v. FreeEats.com, No. 07S00-1008-MI-411, that focuses more specifically on state constitutional issues. The justices heard arguments in January on that Brown County case involving the attempted enforcement of the state statute. Those same constitutional questions about the 1988 statute were left open by the state’s high court in December 2008, when the justices unanimously determined the state law isn’t limited to commercial message calls placed to consumers but stopped short of deciding how the law applies to political messages.

Attorney Paul Jefferson with Barnes & Thornburg, who represents both Patriotic Veterans and Freeeats.com, said the two cases are on parallel but separate courses and that he doesn’t think the justices needed to wait on this federal suit’s resolution. The Office of the Indiana Attorney General Greg Zoeller said Wednesday he will appeal the ruling and ask for an immediate stay.

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