Re: FCC chairwoman: Fines alone aren't enough (Robocalls)

[Sabri Berisha <sabri () cluecentral net>]

----- On Oct 5, 2022, at 5:25 PM, Matthew Black Matthew.Black () csulb edu wrote:

Hi Matthew,

> This might have been what I read years ago:

> Teltech Systems Inc. v. Bryant, 5th Cir., No. 12-60027

This case does not permit spoofing based on the First Amendment. In fact, the court's
opinion explicitly refuses to discuss First Amendment issues:

> Because we hold ASA is conflict-preempted by TCIA, we need not consider its validity
> under the dormant Commerce Clause or First Amendment.

In other words: the court ruled that the Federal TCIA preempts (overrules) the state's
ASA. In this case, the state statute was more restrictive than the federal statute. The
court merely set aside the state law in favor of the less restrictive federal law.

The TCIA defines harmful spoofing as done with:

"intent to defraud, cause harm, or wrongfully obtain anything of value" 

The ASA defines harmful spoofing as done with:

"with the intent to deceive, defraud or mislead the recipient of a call"

The court says here:

> ASA is more restrictive than TCIA. On the one hand, spoofing done with "intent to
> defraud, cause harm, or wrongfully obtain anything of value" (harmful spoofing), in
> violation of TCIA, is also violative of ASA. On the other hand, spoofing done without
> such intent, but "with the intent to deceive . . . or mislead  [**4] the recipient of
> the call" (non-harmful spoofing), violates only ASA.

Thus, such spoofing may still be a violation of federal law. A competent lawyer can tell
you more :-)

Thanks,

Sabri