Brill knows a thing or two about robocalls. He spent 2017 challenging a provision of the Telephone Consumer Protection Act as violating the First Amendment. “We have argued that this provision is unconstitutional because …. it authorizes a huge volume of autodialed calls to collect government-backed debt while prohibiting other autodialed calls that present less significant privacy issues,” he says. Brill expects 2018 to bring appellate decisions that will resolve the issues, which would be welcome news to pay TV operators getting hit with TCPA lawsuits. Brill worked at the FCC and in private practice before joining Latham & Watkins.
What have been the most important legal issues in communications for you in the past year?
I have worked on several cases brought under the Telephone Consumer Protection Act (TCPA) in which we have challenged a core provision of the statute as violating the First Amendment. We have argued that this provision is unconstitutional because (among other problems) it authorizes a huge volume of autodialed calls to collect government-backed debt while prohibiting other autodialed calls that present less significant privacy issues. Several district courts have now agreed that the provision draws a content-based distinction and thus triggers strict scrutiny, but thus far each court has held that the provision satisfies that exacting standard. Some of these challenges will be reviewed by federal courts of appeals in 2018, raising a significant prospect that a court will declare this content-based provision unconstitutional. Such a holding would significantly alter the landscape for TCPA litigation.
Separately, the net neutrality proceeding before the FCC, which is now heading back to the court of appeals, has given rise to interesting and important legal questions. In addition to the central questions that will be presented on appeal of the FCC’s order – namely, whether the FCC properly classified broadband Internet access service under the Communications Act and whether it fulfilled its obligations under the Administrative Procedure Act – challengers likely will argue that the FCC lacked authority to preempt states from regulating broadband. With numerous states now considering legislation and some already having issued executive orders addressing net neutrality, this preemption issue, which will also be critical in any separate challenges to such state measures, has emerged as a critical issue.
My net neutrality prediction is …
The FCC will successfully defend its Restoring Internet Freedom Order in the court of appeals. The court will hold that the FCC reasonably construed broadband Internet access service as an information service and that its Order did not violate the Administrative Procedure Act. While it will be difficult to pass a bipartisan net neutrality bill in Congress this year, the prospects for such legislation will be much greater in 2019 after the RIF Order has been upheld on appeal.
If you could be any legal thriller writer, who would you want to be and why?
Scott Turow. I remember picking up “Presumed Innocent” years ago and not being able to put it down until I finished it. I admired Turow’s ability to deliver a suspenseful and well-written thriller that includes realistic details about the litigation process.