What was intended as a safeguard against abusive telemarketing is being twisted into a potentially far more sweeping restriction, raising serious First Amendment concerns for corporate communicators of people’s contact information. Colorado’s Prevention of Telemarketing Fraud Act’s (“PTFA”) listing provision (“Listing Provision”) threatens corporate sharing of cell phone numbers, regardless of whether these cellular phone numbers are already in the public domain. In just the past year, plaintiffs’ attorneys have filed almost 30 PTFA putative class actions, claiming that Coloradans’ cell phone numbers are presumptively private no matter how widely disseminated. In these shakedown suits, plaintiffs’ attorneys target companies for alleged knowing listing of “a cellular telephone number in a directory for a commercial purpose unless the person whose number has been listed has given affirmative consent[.]” Colo. Rev. Stat. Ann. § 6-1-304(4).
The Listing Provision was added to the PTFA in 2005 and lay dormant until recently. Dozens of PTFA Listing Provision lawsuits are now pending in Colorado, New York, California, Washington, Massachusetts, and Florida, with more popping up weekly. These cases not only are expensive and time-consuming for corporate defendants but also reflect a larger trend toward limiting freedom of speech in favor of protecting an unjustifiably expansive view of privacy.
Although no substantive PTFA Listing Provision decisions exist because the litigation is so new, defendants have raised various compelling dismissal arguments. For instance, a central argument is that the PTFA Listing Provision, as read by the plaintiffs’ lawyers, would be facially unconstitutional under the First Amendment. By deeming cell phone numbers presumptively private, the statute is a content-based regulation of noncommercial speech and therefore subject to strict scrutiny. Under a strict scrutiny analysis, the Listing Provision as cast by the plaintiffs’ lawyers is both underinclusive and overinclusive and is not the least restrictive means of achieving the PTFA’s goal of curbing abusive telemarketing. Moreover, the Listing Provision unconstitutionally seeks to regulate speech of public interest without being narrowly tailored to serve a governmental interest of the highest order.
In addition to the First Amendment flaws, the Listing Provision prohibits listing a cellular number in a directory for a commercial purpose, but the PTFA doesn’t define a “directory,” leaving its meaning unconstitutionally vague. Merriam-Webster’s dictionary defines “directory” as an “alphabetical or classified list of names and addresses,” suggesting that the statute prohibits displaying long lists of phone numbers that telemarketers could use to serially call consumers. Many of the corporate defendants, however, produce a single telephone number based on a user query, not a long list of phone numbers.
Furthermore, the Listing Provision prohibits listing cell phone numbers without affirmative consent, but the statute doesn’t clarify what constitutes consent, other than that it must be “written, oral or electronic.” Colo. Rev. Stat. § 6-1-304(4)(a)(I). A putative class member could give consent to a defendant directly, but the putative class member also could give consent to a third party that is broad enough to extend to the defendant. Or the putative class member might have waived consent by widely publishing the number. This vague consent definition not only raises First Amendment, void for vagueness, and statutory interpretation problems, but also undermines class certification because in any of these cases, there will be hundreds of mini-trials to determine whether each potential class member has consented to the alleged number listing.
The foregoing are just examples of the myriad elemental and defensive challenges (such as anti-SLAPP, statutory and constitutional standing, fail-safe, Dormant Commerce Clause, Twombly/Iqbal, and preclusion of statutory damages) available to defense counsel and their clients in the PTFA Listing Provision litigation. Over the next 12 to 24 months, we expect state and federal judges to start opining on the meaning of the Listing Provision and the related constitutional implications.
Plaintiffs’ firms bringing these claims include Bursor & Fisher, P.A., Emery Reddy PLLC, Anderson + Wanca, and Birnbaum & Godkin, LLP. It’s critical that corporate defendants defeat these cases so that the filings don’t metastasize further (as we’ve seen, for instance, with TCPA, BIPA, CIPA, and similar bloated money-grab litigation brought under the guise of protecting privacy).
The consequences of the PTFA Listing Provision cases could be far greater than just limiting cell phone number dissemination. If this trend toward limiting freedom of speech in the name of privacy continues, First Amendment protections could be further eroded generally. Today in these cases, the information being restricted is Coloradoans’ cell phone numbers, but tomorrow it could be any attribute of personhood, no matter how widely known and no matter how important to the public.
Vedder Price P.C. is actively defending against PTFA Listing Provision litigation. For compliance or litigation-defenses assistance with these or similar First Amendment vs. privacy putative class or direct actions, please contact your Vedder Price P.C. representative and/or the authors of this article: Blaine Kimrey (312-609-7865/bkimrey@vedderprice.com) and Hannah Yozzo (424-204-7798/hyozzo@vedderprice.com).