Telephone Consumer Protection Act (TCPA)

47 U.S.C. §227

(f) Effect on State law.

(1) State law not preempted. Except for the standards prescribed under subsection (d) and subject to paragraph (2) of this subsection, nothing in this section or in the regulations prescribed under this section shall preempt any State law that imposes more restrictive intrastate requirements or regulations on, or which prohibits—

(A) the use of telephone facsimile machines or other electronic devices to send unsolicited advertisements;

(B) the use of automatic telephone dialing systems;

(C) the use of artificial or prerecorded voice messages; or

(D) the making of telephone solicitations.


(2) State use of databases. If, pursuant to subsection (c)(3), the Commission requires the establishment of a single national database of telephone numbers of subscribers who object to receiving telephone solicitations, a State or local authority may not, in its regulation of telephone solicitations, require the use of any database, list, or listing system that does not include the part of such single national database that relates to such State.




There has not been a significant debate between the circuit courts about the application of the law. However, most cases discuss the presumption against preemption.


Case Law


Sussman v. I.C. Sys., 928 F. Supp. 2d 784 (S.D.N.Y. 2013)

Facts: Defendant’s calls violated New York GBL §399-p, but Defendant argues the state law is preempted by the TCPA.

Application: There is a Presumption Against Preemption. Congressional intent in enacting the TCPA was not to preempt state laws, but rather to regulate the telecommunications industry concurrently with the states. Therefore, there is no Field Preemption. It is not impossible to comply with both, so there is no Conflict Preemption.

Holding: The state law is not preempted.


Gottlieb v. Carnival Corp., 635 F. Supp. 2d 213 (E.D.N.Y. 2009)

Facts: Plaintiff sued under the TCPA, but Defendant argued it had an established business relationship (EBP), an exemption codified at 47 C.F.R. §64.1200(f)(4). In a prior decision, the court invalidated the EBR. Defendant moved for reconsideration.

Holding: The court did not have jurisdiction to invalidate the EBR exemption. The motion for reconsideration was granted.


Patriotic Veterans, Inc. v. Indiana ex rel. Zoeller, 736 F.3d 1041 (7th Cir. 2013)

Facts: Indiana Code § 24-5-14-5 bans auto-dialed telephone calls without receiver’s consent.

Rule: States with more stringent requirements than the TCPA are not subject to conflict preemption.

Holding: The state law is not preempted.


Van Bergen v. Minnesota, 59 F.3d 1541 (8th Cir. 1995)

Facts: A politician wanted to use robocalls to contact voters, which was prevented by Minnesota state law.

Holding: Minnesota law is virtually identical to the TCPA, therefore it is not preempted.


State ex rel. Stenehjem v., Inc., 2006 ND 84 (N.D. 2006)

Facts: N.D.C.C. §51-28-02 prohibits the placement of telephone calls using an automatic dialing-announcing device, except in certain enumerated instances.

Holding: The North Dakota state law is not preempted.


Utah Div. of Consumer Prot. v. Flagship Capital, 2005 UT 76 (U.T. 2006)

Facts: Utah state law imposed heightened standards for companies wanting to make automated phone calls to Utah.

Holding: The Utah state law was not preempted.