In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 11‐3265
PATRIOTIC VETERANS, INC.,
Plaintiff‐Appellee,
v.
STATE OF INDIANA, et al.,
Defendants‐Appellants.
____________________
Appeal from the United States District Court for the
Southern District of Indiana, Indianapolis Division.
No. 1:10‐cv‐00723‐WTL‐TAB — William T. Lawrence, Judge.
____________________
ARGUED JANUARY 20, 2012 — DECIDED NOVEMBER 21, 2013
____________________
Before FLAUM, AND ROVNER, Circuit Judges and CASTILLO,
District Judge.
ROVNER, Circuit Judge. Legislators in the State of Indiana
believe that the bulk of its citizens find automated telephone
messages to be an annoyance, and one worthy of govern‐
ment protection. These types of telephone calls are made by
Of the Northern District of Illinois, sitting by designation.
2 No. 11‐3265
an automatic dialing‐announcing device that (according to
Indiana’s definition) selects and dials telephone numbers
and disseminates a prerecorded or synthesized voice mes‐
sage to the telephone number called. See Ind. Code § 24–5–
14–1. In common parlance these calls are often referred to as
“robocalls.”
This hunch about robocalls is backed by empirical data.
From January 1, 2002, until September 30, 2010, the Attorney
General of Indiana fielded 27,577 valid complaints under the
State’s Telephone and Privacy Act and Autodialer Law.1 Be‐
tween January 1, 2009 and September 30, 2010,more than
half of the 8,799 valid Telephone Privacy Act complaints
made to the Attorney General of Indiana reported the use of
autodialers. Id. Similarly, the Federal Trade Commission
fields over 200,000 complaints about automated marketing
or “autodialer” calls every month.2 In 2012, the Federal
Trade Commission offered a $50,000 reward to any person
who could come up with a solution to stopping these un‐
1 A valid complaint is one that alleges facts which describe a possible
violation of the Telephone Solicitation of Consumers Act or the Regula‐
tion of Automatic Dialing Machines Act or both and contains sufficient
information to conduct an investigation. Declaration of Marguerite M.
Sweeny, Section Chief of Telephone Privacy Section for the Office of the
Attorney General of the State of Indiana. Appellant’s Separate Appendix
at 44–46.
2 Fed. Trade Comm’n, “FTC Leads Joint Law Enforcement Effort Against
Companies That Allegedly Made Deceptive ‘Cardholder Services’ Ro‐
bocalls.” Nov. 1, 2012. Available at http://www.ftc.gov/opa/2012/11/ ro‐
bocalls.shtm. Last accessed October 30, 2013.
No. 11‐3265 3
wanted calls. Robocall Challenge, 77 Fed. Reg. 64802–01
(Oct. 23, 2012).
Indiana’s attempt to protect its citizens from these phone
calls resulted in the enactment of the state’s Automated Dial‐
ing Machine Statute, which bans these autodialed calls un‐
less the receiver has consented to the calls in some manner
before the automated message is delivered. Ind. Code § 24–
5–14–1 through § 24–5–14–13. There are some very limited
exemptions—for example, school districts may send mes‐
sages to students and parents, and employers may send
messages to employees—but there is no exception for politi‐
cal calls. Ind. Code § 24–5–14–5(a). The Attorney General of
Indiana may enforce the Autodialer Law by imposing vari‐
ous penalties including, among others, injunctions against
future violations, suspension of business certificates, the
voiding of contracts, and fines. Ind. Code §§ 24–5–0.5–4(c),
24–5–0.5–4(g).
The heart of Indiana’s statute reads as follows:
(b) A caller may not use or connect to a telephone
line an automatic dialing‐announcing device un‐
less:
(1) the subscriber has knowingly or voluntarily
requested, consented to, permitted, or author‐
ized receipt of the message; or
(2) the message is immediately preceded by a
live operator who obtains the subscriberʹs con‐
sent before the message is delivered.
Ind. Code § 24–5–14–5.
4 No. 11‐3265
But for the Indiana statute, the appellant, Patriotic Veter‐
ans, Inc., would make calls in Indiana.3 Patriotic Veterans,
Inc. is a not‐for‐profit Illinois corporation whose purpose is
to inform voters of the positions taken by the candidates and
office holders on issues of interest to veterans. In disseminat‐
ing this information, Patriotic Veterans uses automatically
dialed phone calls that deliver a political message related to
a particular candidate or issue. For example, Patriotic Veter‐
ans’ website states that “in 2010, Patriotic Veterans, in part‐
nership with singing idol Pat Boone sponsored nearly 1.9
million calls to veterans and seniors across the U.S. about
cuts in Medicare as a result of the passage of Obamacare.”
http://www.gravideo.com/patrioticveterans/what.html (last
visited June 1, 2013). The service Patriotic Veterans uses to
disseminate its message is capable of delivering as many as
100,000 messages in a three hour period. Patriotic Veterans
maintains that it cannot afford to hire operators to make the
phone calls without the use of an automatic dialer and a rec‐
orded message, as the cost of doing so is eight times higher
than using an automatic dialing service. The group also
maintains that live operators cannot make calls fast enough
when time is of the essence—such as on the eve of an elec‐
tion.
3 The district court refused to stay its injunction prohibiting the State of
Indiana from enforcing the law pending appeal. Patriotic Veterans, Inc. v.
Indiana, No. 1:10‐cv‐723‐WTL‐TAB (S.D. Ind. Dec. 13, 2011) (order deny‐
ing Defendant’s Motion to Stay Enforcement of the Judgment Pending
Resolution of the Appeal). This court, however, later stayed the district
court’s injunction pending appeal. Patriotic Veterans, Inc. v. Indiana, No.
11‐3265 (7th Cir. Dec. 21, 2011) (granting Defendant/Appellants’ Motion
for Stay Pending Appeal).
No. 11‐3265 5
Consequently, Patriotic Veterans filed a complaint
against the State of Indiana and Attorney General Greg Zo‐
eller seeking a declaration that the Indiana law is invalid as
it violates the First Amendment, at least as it applies to polit‐
ical messages, and is also preempted by the Federal Tele‐
phone Consumer Protection Act (TCPA), 47 U.S.C. § 227.
That federal law, the TCPA, represents Congress’s at‐
tempts to address similar concerns about the deleterious ef‐
fects of telemarketing and telephone solicitations, particular‐
ly automated calls. See S. Rep. No. 102–178, reprinted in 1991
U.S.C.C.A.N. 1968. The TCPA regulates various telemarket‐
ing behaviors and includes, among other things, regulations
on the uses of autodialers. It prohibits calls to a residential
telephone line using an artificial or prerecorded voice with‐
out the recipient’s prior express consent, “unless the call is
initiated for emergency purposes or is exempted by rule or
order by the [Federal Communications] Commission under
paragraph 2(B).” 47 U.S.C. § 227 (b)(1)(B). Under paragraph
2(B), the FCC is authorized to exempt calls that are not made
for a commercial purpose, 47 U.S.C. § 227(b)(2)(B)(i), and the
FCC has used its authority to exempt non‐commercial calls
in the following manner:
(a) No person or entity may …
(3) Initiate any telephone call to any residential line
using an artificial or prerecorded voice to deliver a
message without the prior express written consent of
the called party, unless the call; … (ii) Is not made for
a commercial purpose.
47 C.F.R. § 64.1200(a)(3)(ii)(2005).
6 No. 11‐3265
In passing the TCPA, Congress particularly noted that
over forty states had enacted legislation limiting the use of
autodialers, but that “[m]any states have expressed a desire
for Federal legislation to regulate interstate telemarketing
calls to supplement their restrictions on intrastate calls.” See
S. Rep. No. 102–178, at 2–3, reprinted in 1991 U.S.C.C.A.N.
1968, 1970. In reaching this conclusion, the Congressional
statement assumed that the states did not have jurisdiction
over interstate calls—an assumption we will explore further
below.
Both parties moved for summary judgment—an appro‐
priate adjudicative procedure where the parties agree that
none of the relevant facts are in dispute and the resolution
hinges solely on an issue of law. See Fed. R. Civ. P. 56; Berry
v. Chicago Transit Auth., 618 F.3d 688, 691 (7th Cir. 2010). In
this case, those issues of law include first, whether the Indi‐
ana statute is preempted by federal law, and second, wheth‐
er the statute violates the First Amendment of the United
States Constitution.
The district court found that the TCPA preempted Indi‐
ana’s statute as it applies to the interstate use of autodialers
and granted Patriotic Veterans’ request for an injunction
against the enforcement of the regulation with regard to po‐
litical messages. Patriotic Veterans, Inc. v. Indiana, 821 F. Supp.
2d 1074, 1079 (S.D. Ind. 2011). Because it found that the stat‐
ute was preempted, the district court properly declined to
rule on the First Amendment question. Upon a motion from
the state, this court stayed the district court’s injunction
pending appeal. See supra, note 3. We review the district
court’s summary judgment decision pertaining to preemp‐
No. 11‐3265 7
tion de novo. Ramos v. City of Chicago, 716 F.3d 1013, 1014
(7th Cir. 2013).
In keeping with our mandate to address statutory issues
before constitutional ones (see Jean v. Nelson, 472 U.S. 846,
854 (1985); Ameritech Corp. v. McCann, 403 F.3d 908, 911 (7th
Cir. 2005)), we look first at the issue of preemption. In de‐
termining whether a federal statute preempts state law we
begin, as we always must, with the intent of Congress. Wyeth
v. Levine, 555 U.S. 555, 565 (2009). We ascertain the intent of
Congress, however, through a lens that presumes that the
state law has not been preempted. Id. We do this because,
given the historic police powers of the states, a court must
assume that Congress did not intend to supersede those
powers unless the language of the statute expresses a clear
and manifest purpose otherwise. Id. at 565. Altria Group v.
Good, 555 U.S. 70, 77 (2008); Arizona v. U.S., 132 S. Ct. 2492,
2501 (2012), cert. denied, 133 S. Ct. 2736 (2013); Gregory v. Ash‐
croft, 501 U.S. 452, 460–461 (1991). Thus, when the text of a
preemption clause is susceptible of more than one plausible
reading, courts ordinarily “accept the reading that disfavors
pre‐emption.” Altria Group, 555 U.S. at 77. In this case, it is
clear that the states historically have held the power to po‐
lice harassing telephone calls. See, e.g. 720 ILCS 5/26.5–2; Ind.
Code § 35–45–2–2; Wisconsin Stat. § 947.012(1)(a). Likewise,
states and localities historically have policed activities that
violate the peaceful enjoyment of the home. See Frisby v.
Schultz, 487 U.S. 474, 484–485, (1988); Watchtower Bible and
Tract Soc’y of New York, Inc. v. Vill. of Stratton, 536 U.S. 150,
162–163 (2002); FCC v. Pacifica Found., 438 U.S. 726, 748–749
(1978)
8 No. 11‐3265
Thus, given our directive to look at the intent of Congress
with a presumption of non‐preemption, the first place to
look for Congress’s intent is in the TCPA’s preemption
clause (also called a savings clause) which states in relevant
part:
(f) Effect on State law
(1) State law not preempted
… nothing in this section or in the regula‐
tions prescribed under this section shall
preempt any State law that imposes more re‐
strictive intrastate requirements or regulations
on, or which prohibits …
(B) the use of automatic telephone dialing
systems;
(C) the use of artificial or prerecorded voice
messages;
47 U.S.C. § 227(f)(1).
As the district court noted, if the savings clause is read as
written, the savings clause would apply to and prevent
preemption of (1) state laws that impose more restrictive in‐
trastate requirements or regulations on the use of automatic
telephone dialing systems; and (2) state laws which prohibit
the use of automatic telephone dialing systems (both intra‐
and interstate). Patriotic Veterans, 821 F. Supp. 2d at 1078.
The district court found this to be an odd result, for, on
its face, it appears that it would not apply to any state law
that imposes more restrictive interstate requirements or regu‐
lations on the use of automatic telephone dialing systems,
only intrastate regulations, thus protecting a state’s ability to
No. 11‐3265 9
prohibit conduct altogether but not its ability to place re‐
strictions on it. Id. Because the district court felt this was a
perplexing result, it concluded that it must look elsewhere
for evidence of Congressional intent. Id.
Even were this an odd result (and as we explore later, we
do not believe that it is), the court’s job is not to fix it. The
“preeminent canon of statutory interpretation” requires that
courts “presume that [the] legislature says in a statute what
it means and means in a statute what it says there.” BedRoc
Ltd. v. U.S., 541 U.S. 176, 183 (2004) (quoting Connecticut
Natʹl Bank v. Germain, 503 U.S. 249, 253–54 (1992)). If Con‐
gress determines later that the plain language of the statute
does not accurately reflect the true intent of Congress, it is
for Congress to amend the statute. See Dodd v. U.S., 545 U.S.
353, 359–360 (2005). The court’s task is not to seek a motive
for what Congress has plainly done, in fact, to the contrary, a
court must “avoid rendering what Congress has plainly
done … devoid of reason and effect.” Great‐West Life & An‐
nuity Ins. Co. v. Knudson, 534 U.S. 204, 217–218 (2002). If
Congress had intended, therefore, that the second part of the
savings clause apply only to the intrastate clause it could
simply have said that. North Dakota v. FreeEats.com, 712
N.W.2d 828, 834 (ND 2006) (analyzing substantially similar
state statute and quoting Great‐West Life and Annuity Ins. Co.,
534 U.S. at 218 for this conclusion). As it stands, the plain
language of the statute decrees that state laws that prohibit
autodialers are not preempted by the statute.
Although the district court conceded that a facial reading
of the statute seemed to indicate that the TCPA does not
preempt Indiana’s autodialer statute, Patriotic Veterans goes
one step farther and argues that the plain language of the
10 No. 11‐3265
Indiana statute expressly preempts the state statute. It does
so by arguing that the word “intrastate” somehow modifies
“requirements or regulations” as well as the phrase “or
which prohibits.” Patriotic Veterans concedes, as it must,
that such a reading is “not grammatically perfect.” It is not
only imperfect, but irrational. This is why, perhaps, Patriotic
Veterans abstractly describes the roles of “that” and “which”
and “restrictive clauses” and “non‐restrictive clauses” with‐
out ever showing us how it would change the language of
the statute to make it work in a way that Patriotic Veterans
says it does. This is because there is no rational way to re‐
arrange the language to make it say what the veterans
would like it to say. The TCPA does not expressly preempt
the Indiana statute.
The district court concluded instead that Indiana’s stat‐
ute, by exempting certain entities and types of calls, merely
regulated autodialers and did not prohibit them, and there‐
fore did not fall into the expressly saved category of statutes
that “prohibit[] … the use of automatic telephone dialing
systems.” 47 U.S.C. § 227(f)(1). Indiana’s statute, however,
does appear to be a prohibition—it prohibits automatic dial‐
ing devices unless consent is first obtained. There are indeed
other enumerated exemptions to the statute, but each de‐
scribes a form of implied consent: Autodialers may be used
to make calls “(1) from school districts to students, parents,
or employees; (2) to subscribers with whom the caller has a
current business or personal relationship; or (3) advising
employees of work schedules.” Ind. Code § 24–5–14–5. By
accepting a job, an employee impliedly consents to phone
calls from his employer for work related scheduling purpos‐
es, as do families who enroll children at school or people
who enter into business relationships. Exemptions for con‐
No. 11‐3265 11
sent do not turn this statute from a prohibition into a regula‐
tion. Consent simply takes the encounter outside the realm
of the statute altogether, not unlike in other contexts of law
where consent removes an action from the domain of a par‐
ticular law. For example, consent removes a search from the
realm of the Fourth Amendment, see, U.S. v. Figueroa‐Espana,
511 F.3d 696, 702 (7th Cir. 2007); removes the prohibition on
intercepting telephone calls, Indiana Code § 35–31.5–2–176;
and removes the criminal intent from any number of prohi‐
bitions in criminal statutes from robbery to sexual assault.
Nevertheless, even if we were to decide that the excep‐
tions to the prohibition make the Indiana statute a regulation
and not a prohibition, then what we have is a statute that
imposes more restrictive interstate regulations—a category
not addressed at all by the savings clause. The district court
used this fact to assume that the law was pre‐empted and
thus enjoined. The court reasoned, “[b]y defining in this way
a universe of state laws that are not preempted, this provi‐
sion, by implication, suggests that Congress intended for
state laws outside of that defined universe to be preempted.”
Patriotic Veterans, 821 F. Supp. 2d at 1077 (emphasis in origi‐
nal). The court’s presumption of preemption from a lack of
express language cannot be reconciled with the Supreme
Court’s ardent instruction that “we start with the assump‐
tion that the historic police powers of the States were not to
be superseded by the Federal Act unless that was the clear
and manifest purpose of Congress.” Wyeth, 555 U.S. at 565
(internal citations omitted). When the text of a preemption
clause is susceptible of more than one plausible reading,
courts ordinarily “accept the reading that disfavors pre‐
emption.” Altria Group, 555 U.S. at 77. Thus the district court
erred by presuming that laws that were not explicitly saved
12 No. 11‐3265
were preempted. In fact, the TCPA says nothing about
preempting laws that regulate the interstate use of automatic
dialing systems. Therefore, we must conclude that they are
not preempted.
The plain language of the text reinforced by the pre‐
sumption against preemption prevents this court from look‐
ing any further—odd result or not. But even if we were per‐
mitted to consider whether the statute as written reflected
the true intent of Congress, we might well conclude that the
result was not an odd result after all. The TCPA and its regu‐
lations set forth some specific regulations regarding auto‐
dialer calls, including constraints on the timing and recipi‐
ents of telephone calls. 47 C.F.R. § 64.1200 (for example, tele‐
phone solicitation may only be made to a residential tele‐
phone customer between 8 a.m. and 9 p.m. local time). Given
the myriad variations possible in state regulations of auto‐
dialers which might or might not coincide with those prom‐
ulgated by the federal government, Congress may have de‐
termined that states could pass regulations with flat‐out
prohibitions but not regulations with more restrictive inter‐
state constraints. An absolute prohibition makes the rules on
the use of autodialers easy to follow on a state‐by‐state basis
(and, one might argue, so do black and white rules requiring
consent), but asking autodialing companies to comply with a
web of fifty different state regulatory systems with different
requirements about the permissible hours and types of call
recipients might create havoc. But it is worth emphasizing
once again that it is not the court’s role to determine whether
Congress’s rationale was sound. The plain language dictates
that the Indiana statute is not expressly preempted. This is
true whether the Indiana statute is one that merely regulates
autodialed interstate calls or prohibits them.
No. 11‐3265 13
The fact that we hold that there is no express preemption
does not end the matter. When there is no express preemp‐
tion, there are two forms of implied preemption that a court
might consider:
(1) field preemption, which arises when the federal
regulatory scheme is so pervasive or the federal inter‐
est so dominant that it may be inferred that Congress
intended to occupy the entire legislative field; and (2)
conflict preemption, which arises when state law con‐
flicts with federal law to the extent that “compliance
with both federal and state regulations is a physical
impossibility,” or the state law “stands as an obstacle
to the accomplishment and execution of the full pur‐
poses and objectives of Congress.”
Planned Parenthood of Ind., Inc. v. Comm’r of Ind. State Dept. of
Health, 699 F.3d 962, 984 (7th Cir. 2012) (citing Arizona v. U.S.,
132 S. Ct. at 2501); Crosby v. Nat’l Foreign Trade Council, 530
U.S. 363, 372–373 (2000). As we will explain further below,
the categories of preemption are not “rigidly distinct.”
Just as with express preemption, neither of these implied
preemption doctrines can be lightly applied.“Implied
preemption analysis does not justify a ‘freewheeling judicial
inquiry into whether a state statute is in tension with federal
objectives’; such an endeavor ‘would undercut the principle
that it is Congress rather than the courts that preempts state
law.’” Chamber of Commerce v. Whiting, 131 S. Ct. 1968, 1985
(2011) (citing Gade v. Nat’l Solid Wastes Mgmt Assn., 505 U.S.
88, 111 (1992) (Kennedy, J., concurring in part and concur‐
ring in judgment)). Because we begin with the assumption
that a state’s historic police powers cannot be preempted by
a federal act unless the preemption was the clear intent of
14 No. 11‐3265
Congress, the burden is on Patriotic Veterans to present a
showing of implied preemption that is strong enough to
overcome the presumption that state and local regulations
can coexist with federal regulation. Hillsborough County, Fla.
v. Automated Med. Labs., Inc., 471 U.S. 707, 715–716 (1985).
Patriotic Veterans argues that the regulations of the FCC
specifically permit noncommercial pre‐recorded messages
and thus Indiana’s law conflicts with the full purposes and
objectives of Congress. Patriotic Veterans, however, misun‐
derstands the nature of conflict preemption. In addition to
starting with a presumption against preemption, in order for
a court to find conflict preemption it must either be impossi‐
ble for a private party to comply with both the state and fed‐
eral law (English v. Gen. Elec. Co., 496 U.S. 72, 79(1990)), or
the state law must stand “as an obstacle to the accomplish‐
ment and execution of the full purposes and objectives of
Congress,” Hillman v. Maretta, 133 S. Ct. 1943, 1950 (2013).
The fact that a state has more stringent regulations than a
federal law does not constitute conflict preemption. Other‐
wise every time a state chose to apply a more rigorous
standard when regulating conduct within the state, the re‐
sult would be impermissible. We know, however, that states
frequently, and without preemption by federal law, create
more stringent laws regarding minimum wage, employment
discrimination, educational standards, gambling, and high‐
way safety, to name a few.
A comparison of two Supreme Court cases evaluating
conflict preemption reveals the importance of true impossi‐
bility for conflict preemption. In Mutual Pharm. Co., Inc. v.
Bartlett, the Supreme Court found conflict preemption where
a pharmaceutical manufacturing company could not comply
No. 11‐3265 15
with both its state‐law duty to strengthen the warnings on a
particular drug’s label and its federal‐law duty not to alter
the label. Id., 133 S. Ct. 2466, 2473 (2013). In contrast, the
Court found no conflict preemption where a state adopted a
regulation requiring propeller guards on all motorboats
where the Coast Guard opted not to so regulate. Sprietsma v.
Mercury Marine, 537 U.S. 51, 64–66 (2002).
Patriotic Veterans has not demonstrated that it would be
impossible to comply with both the state statute and the
TCPA. The veterans group could comply with the Indiana
requirements for consent without violating any aspects of
the TCPA. Conflict preemption requires complete impossi‐
bility—not mere inconvenience or hardship.
Patriotic Veterans also argues that Indiana’s law “stands
as an obstacle to the accomplishment and execution of the
full purposes and objectives of Congress”—a form of conflict
preemption sometimes called “purposes and objectives
preemption.” Geier v. Am. Honda Motor Co., 529 U.S. 861, 873
(2000). It does so, says the veterans group, by “frustrat[ing]
Congressional desire to protect noncommercial speech.”
Appellees Brief at 28–29. But the presumption against
preemption of state laws dictates that a law must do “major
damage” to clear and substantial federal interests before the
Supremacy Clause will demand that state law surrenders to
federal regulation. Hillman, 133 S. Ct. at 1950. We fail to see
how Indiana’s law stands as an obstacle to the accomplish‐
ments of Congress’s goal to protect the privacy of citizens
against unsolicited telephone calls. See 47 U.S.C.
§ 227(b)(2)(B)(ii)(I); (c)(1); & (c)(2) (noting the privacy inter‐
ests behind the statute and requiring the Commission to
consider privacy interests in using its rulemaking authority).
16 No. 11‐3265
See also S. REP. 102–178, at 1, reprinted in 1991 U.S.C.C.A.N.
1968, 1968 (The purpose of the TCPA is to “protect the pri‐
vacy interests of residential telephone subscribers by placing
restrictions on unsolicited, automated telephone calls to the
home and to facilitate interstate commerce by restricting cer‐
tain uses of facsimile (fax) machines and automatic dial‐
ers.”). By restricting unsolicited automated telephone calls to
the home, Indiana’s statute not only does not conflict with
the federal purpose but fully supports it.
Patriotic Veterans notes that throughout the legislative
history of the TCPA Congress indicated its intent to protect
First Amendment freedoms. Of course it goes without say‐
ing that any time Congress passes a law, one of its objectives
always must be to comply with the Constitution. Such an
objective, however, does not turn the legislation into one
that has the purpose of protecting constitutional concerns.
The objective noted in the legislative history states that the
purpose of the TCPA is “to protect the privacy interests of
residential telephone subscribers by placing restrictions on
unsolicited, automated telephone calls to the home.” Id. The
fact that the legislature attempted to do so without violating
the free speech rights protected by the First Amendment
does not turn the legislation into one with the purpose and
objective of protecting non‐commercial robocalls. The Indi‐
ana statute does not create conflict preemption with the
TCPA, either by making it impossible to comply with the
federal statute or by doing major damage to the purposes
and objectives of the federal statute.
The Indiana statute could be preempted still if we find
field preemption—that is, if the TCPA protects a federal
regulatory scheme that is so pervasive or a federal interest
No. 11‐3265 17
that is so dominant that it may be inferred that Congress in‐
tended to occupy the entire legislative field. Arizona, 132 S.
Ct. at 2501. When Congress occupies an entire field, one
might also say that Congress has set forth a purpose and ob‐
jective of controlling an entire field of regulation. In this way
the purposes and objectives subcategory of conflict preemp‐
tion merges with field preemption. English, 496 U.S. at 79 n.5
(“A state law that falls within a pre‐empted field conflicts
with Congress’s intent (either express or plainly implied) to
exclude state regulation.”)
In any event, no matter whether we deem it field
preemption or the purposes and objectives subcategory of
conflict preemption, the area of telemarketing protection is
unlike those in which the courts have found that a scatter‐
shot method of regulation and enforcement would frustrate
federal purposes either in law enforcement, foreign rela‐
tions, public safety or the like. See e.g. Arizona, 132 S. Ct. at
2502 (federal framework of laws on alien registration consti‐
tutes field preemption). Pacific Gas & Elec. v. State Energy Res.
Conservation & Dev. Commʹn, 461, U.S. 190, 212–213 (1983)
(nuclear regulation); Napier v. Atl. Coast Line R. Co., 272 U.S.
605, 612–13 (1926) (regulating locomotive equipment used
on a highway of interstate commerce).
The comprehensive nature of federal law on a subject
does not necessarily mean that states are barred from impos‐
ing additional requirements. Hillsborough County, 471 U.S. at
717. The non‐preemption clause of the TCPA is the first and
best evidence that the federal government did not intend to
occupy the entire field of robocall regulation. 47 U.S.C.
§ 227(f)(1)(stating first and foremost, “State law not
preempted”); see also Van Bergen v. Minnesota, 59 F.3d 1541,
18 No. 11‐3265
1548 (8th Cir. 1995) (coming to the same conclusion in evalu‐
ating whether the TCPA preempts a similar state law). The
TCPA also expressly contemplates that states will continue
to regulate telemarketing. 47 U.S.C. § 227(c)(3)(J) (any federal
“do‐not‐call” list must be designed to enable states to use the
database to enforce state law); 47 U.S.C. § 227(f)(2) (If states
create a do‐not‐call list, it must include any federal “do not
call” list adopted pursuant to the TCPA). And as we have
noted, states have long regulated the content of abusive tel‐
ephone calls, and interferences with the peaceful enjoyment
of the home. See supra at 6–7.
Patriotic Veterans cites our decision in Indiana Bell Tel.
Co., Inc. v. Indiana Util. Regulatory Comʹn., 359 F.3d 493, 497
(7th Cir. 2004) and the Supreme Court in Gade v. Nat’l Solid
Wastes Mgmt. Assʹn, 505 U.S. 88, 103 (1992), for the proposi‐
tion that “[i]n determining whether state law stands as an
obstacle to the full implementation of federal law, it is not
enough to say that the ultimate goal of both federal and state
law is the same. A state law also is pre‐empted if it interferes
with the methods by which the federal statute was designed
to reach the goal.” Indiana Bell, 359 F.3d at 497, citing Gade,
505 U.S. at 103. In Indiana Bell, a state agency’s order inter‐
fered with the method that the federal act sets forth for the
application process for long‐distance telephone service pro‐
viders to enter the long distance market. Id. at 497–98. In
brief, the language in Indiana Bell indicates that conflict
preemption applies not only to conflicts between federal and
state substantive rules, but also to state rules that interfere
with processes established by federal acts. In this case, how‐
ever, there is no such conflict in process. The Indiana law is
more restrictive than the federal law, but in no way does it
frustrate any process that the federal statute requires.
No. 11‐3265 19
For similar reasons the Gade comparison is also inapt. In
Gade, the Supreme Court considered a state health and safety
statute that overlapped with the federal Occupational Safety
and Health Act (OSHA). Gade, 505 U.S. at 91. The Court
found that OSHA, as a whole, evinced a Congressional in‐
tent to avoid subjecting workers and employers to duplica‐
tive regulation, and therefore a state could only develop an
occupational safety and health program tailored to its own
needs if it was willing to displace completely the applicable
federal regulations. Id. at 103–04.
But unlike OSHA which evinces a clear Congressional in‐
tent to create one set of rules and regulations, the federal
rules on telemarketing indicate that Congress could not have
intended to have a uniform telemarketing policy. The very
fact that Congress allows states to regulate their own intra‐
state telemarketing demonstrates this.4 Furthermore, the
TCPA contains an express non‐preemption statute express‐
ing an intent not to occupy the entire field. 47 U.S.C.
§227(f)(1) See also Van Bergen, 59 F.3d at 1548; FreeEats.com,
712 N.W.2d at 838–39. For these reasons, the Eighth Circuit
has also concluded that there was no intent by Congress to
create field preemption under the TCPA:
The TCPA carries no implication that Congress in‐
tended to preempt state law; the statute includes a
4 Certainly Congress could have found an interstate hook to regulate
intrastate telemarketing, as such marketing uses the telephone wires,
even for intrastate calls and thus constitutes interstate commerce. See
U.S. v. Richeson, 338 F.3d 653, 660–61 (7th Cir. 2003)) (noting that federal
courts have jurisdiction over intrastate calls as jurisdiction is supplied by
the nature of the instrumentality or facility used, not by separate proof of
interstate movement.).
20 No. 11‐3265
preemption provision expressly not preempting cer‐
tain state laws. If Congress intended to preempt other
state laws, that intent could easily have been ex‐
pressed as part of the same provision. Further, the
preemption provision makes it clear that Congress
did not intend to “occupy the field” of ADAD regula‐
tion, or to promote national uniformity of ADAD
regulation, as it expressly does not preempt state reg‐
ulation of intrastate ADAD calls that differs from fed‐
eral regulation.
Van Bergen, 59 F.3d at 1548.
In any event, the district court never relied on either of
these implied preemption doctrines to justify its holding. In‐
stead the district court attempted to discern the intent be‐
hind Congress’s plain language and then assumed that any
types of regulations not explicitly saved from preemption by
the savings clause must be preempted. The court combined
its presumption from the language of the savings clause
with legislative history to determine that “the TCPA was en‐
acted with the purpose of establishing exclusive regulations
relating to the interstate use of automatic telephone dialing
systems.” Patriotic Veterans, 821 F. Supp. 2d at 1078. We have
now established that neither the exploration into Congres‐
sional intent via legislative history nor the presumption of
preemption was a legitimate pathway for evaluating wheth‐
er the TCPA preempts the Indiana statute.
“Resort to legislative history is only justified where the
face of the [statute] is inescapably ambiguous.” Holder v.
Hall, 512 U.S. 874, 932 n.28 (1994) (O’Connor, J., concurring in
part, concurring in the judgment). The “inescapably” language
means that a court must begin with the presumption that
No. 11‐3265 21
Congress meant exactly what it said. U.S. v. LaBonte, 520 U.S.
751, 757 (1997). A court’s inquiry “begins with the statutory
text, and ends there as well if the text is unambiguous,” Bed‐
rock Ltd. v. U.S., 541 U.S. 176, 183 (2004). The statute is not
inescapably ambiguous here. But even if it were, resort to
the legislative history would not help clarify Patriotic Veter‐
ans’ argument.
The Senate Report discussing the purpose for the legisla‐
tion included the following statement:
[O]ver 40 States have enacted legislation limiting the
use of ADRMPs [automatic dialer recorded message
players] or otherwise restricting unsolicited telemar‐
keting. These measures have had limited effect, how‐
ever, because States do not have jurisdiction over in‐
terstate calls. Many States have expressed a desire for
Federal legislation to regulate interstate telemarketing
calls to supplement their restrictions on intrastate
calls.
S. Rep. No. 102–178, at 3, reprinted in 1991 U.S.C.C.A.N. 1968,
1970. This language actually reinforces the notion that Con‐
gress’s purpose in enacting the TCPA was to do what it
could to help states limit unsolicited automatically dialed
telephone recordings. The language does indeed assume that
states do not have jurisdiction over interstate calls, but that
assumption does not reflect a legislative purpose to deny ju‐
risdiction over interstate calls to the states. Rather it reflects
but one rationale for enacting the law. Whether that ra‐
tionale was correct or not is outside the purview of a court’s
review.
22 No. 11‐3265
The same can be said of the comments of Senator Hol‐
lings, co‐sponsor of the TCPA who noted, “[p]ursuant to the
general preemptive effect of the Communications Act of
1934, State regulation of interstate communications, includ‐
ing interstate communications initiated for telemarketing
purposes is preempted.” 137 Cong. Rec. S18781, S18784 (dai‐
ly ed. Nov. 27, 1991).
First and foremost, the comments of individual senators
do not necessarily reflect Congress’s intent in enacting any
particular piece of legislation. See Mims v. Arrow Fin. Serv.,
LLC., 132 S. Ct. 740, 752 (2012) (noting that Senator Hollings’
comments in support of the TCPA are not controlling on any
court’s decision). See also Wisconsin Educ. Assʹn Council v.
Walker, 705 F.3d 640, 652 (7th Cir. 2013). That is why the Su‐
preme Court has said that when reviewing a statute, a court
must “begin by examining the text, not by psychoanalyzing
those who enacted it.” Carter v. U.S., 530 U.S. 255, 271 (2000)
(internal citations omitted).
Moreover, Senator Hollings’ comments indicate that he
did not think that any part of the TCPA itself preempted any
state’s laws. Rather, he seemed to be under the mistaken as‐
sumption that the broader Federal Communications Act of
1934 (which was amended by the TCPA) somehow
preempted all state laws regulating interstate telephone
calls. That broader Act, however, only regulates communica‐
tion services and facilities, not callers or the content of tele‐
phone communications. 47 U.S.C. § 151.
Furthermore, if it was appropriate to turn to legislative
history to construe the intent of a statute, one would also
have had to consider the fact that earlier, un‐enacted drafts
of the TCPA would have expressly preempted “any provi‐
No. 11‐3265 23
sion of State law concerning interstate communications that
are inconsistent with the interstate communications provi‐
sions of this section.” 137 Cong. Rec. S 16200, 16202 (1991).
We cannot assume that Congress intended to enact statutory
language that it has earlier discarded in favor of other lan‐
guage. Chickasaw Nation v. U.S., 534 U.S. 84, 93 (2001).
In any event, this frolic and detour into the legislative
history and the intent of legislation’s sponsor is unnecessary.
It is clear that the TCPA does not expressly or impliedly
preempt the Indiana statute and we so hold. Other courts
have reached the same conclusion when considering federal
preemption by the TCPA of similar state statutes. See Van
Bergen, 59 F.3d at 1548; Sussman v. I.C. Sys., Inc., 928 F. Supp.
2d 784, 792 (S.D.N.Y. 2013), FreeEats.com, 712 N.W.2d at 841;
Utah Div. of Consumer Prot. v. Flagship Capital, 125 P.3d 894,
901 (Utah 2005).
Because the district court decided the case on the basis of
preemption, it never had reason to address the arguments
regarding the constitutionality of the statute. We are a re‐
viewing court and think that the argument would benefit
from two‐tiered examination. We thus reverse the ruling on
preemption and remand for an evaluation of whether Indi‐
ana’s statute violates the free speech rights protected by the
First Amendment to the United States Constitution.