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Thursday, November 21, 2013

Ind. Decisions - 7th Circuit rules on Robocalls, reversing and remanding

In Patriotic Veterans v. State of Indiana (SD Ind., Lawrence), a 23-page ruling, Judge Rovner writes:

Legislators in the State of Indiana believe that the bulk of its citizens find automated telephone messages to be an annoyance, and one worthy of government protection. These types of telephone calls are made by an automatic dialing‐announcing device that (according to Indiana’s definition) selects and dials telephone numbers and disseminates a prerecorded or synthesized voice message to the telephone number called. See Ind. Code § 24–5– 14–1. In common parlance these calls are often referred to as “robocalls.”

This hunch about robocalls is backed by empirical data. * * *

Indiana’s attempt to protect its citizens from these phone calls resulted in the enactment of the state’s Automated Dialing Machine Statute, which bans these autodialed calls unless the receiver has consented to the calls in some manner before the automated message is delivered. Ind. Code § 24– 5–14–1 through § 24–5–14–13. * * *

But for the Indiana statute, the appellant, Patriotic Veterans, Inc., would make calls in Indiana.[3] * * *

The district court found that the TCPA preempted Indiana’s statute as it applies to the interstate use of autodialers and granted Patriotic Veterans’ request for an injunction against the enforcement of the regulation with regard to political messages. Patriotic Veterans, Inc. v. Indiana, 821 F. Supp. 2d 1074, 1079 (S.D. Ind. 2011). Because it found that the statute was preempted, the district court properly declined to rule on the First Amendment question. Upon a motion from the state, this court stayed the district court’s injunction pending appeal. See supra, note 3. We review the district court’s summary judgment decision pertaining to preemption de novo. Ramos v. City of Chicago, 716 F.3d 1013, 1014 (7th Cir. 2013). * * *

Because the district court decided the case on the basis of preemption, it never had reason to address the arguments regarding the constitutionality of the statute. We are a reviewing court and think that the argument would benefit from two‐tiered examination. We thus reverse the ruling on preemption and remand for an evaluation of whether Indiana’s statute violates the free speech rights protected by the First Amendment to the United States Constitution.
[3] The district court refused to stay its injunction prohibiting the State of Indiana from enforcing the law pending appeal. Patriotic Veterans, Inc. v. Indiana, No. 1:10‐cv‐723‐WTL‐TAB (S.D. Ind. Dec. 13, 2011) (order denying Defendant’s Motion to Stay Enforcement of the Judgment Pending Resolution of the Appeal). This court, however, later stayed the district court’s injunction pending appeal. Patriotic Veterans, Inc. v. Indiana, No. 11‐3265 (7th Cir. Dec. 21, 2011) (granting Defendant/Appellants’ Motion for Stay Pending Appeal).

Here are three earlier ILB entries on Robocalls.

Posted by Marcia Oddi on November 21, 2013 07:19 PM
Posted to Ind. (7th Cir.) Decisions