Does the Telephone Consumer Protection Act Violate Due Process as Applied?

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The Telephone Consumer Protection Act of 1991 (TCPA) subjects a telemarketer’s use of autodialed telephone calls, automated text messages, and faxes to statutory damages of $500 per violation or up to $1,500 per willful violation. Depending on the circumstances of the violating communication, the TCPA’s penalties can exceed by orders of magnitude any plausible economic estimate of the recipient’s actual harm, such that the TCPA, as applied, likely violates the Due Process Clause of the Fifth Amendment.

A violating communication causes actual harm of between 6.8 cents and 70.7 cents per violating communication, depending on the communication channel used. The remainder of the TCPA’s statutory damages is purely punitive. The punitive component of the TCPA’s statutory damages is between 706 and 22,058 times the total actual damages that a violating communication imposes. That multiplier can vary significantly according to the specific circumstances of the violating communication. Given the Supreme Court’s jurisprudence on punitive damages, lower courts must take seriously the possibility that the TCPA’s statutory damages violate the Due Process Clause of the Fifth Amendment as applied.

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Cite as

J. Gregory Sidak, Does the Telephone Consumer Protection Act Violate Due Process as Applied?, 1 Criterion J. on Innovation 649 (2016).