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The Supreme Court affirmed the Telephone Consumer Protection Act’s  (TCPA) prohibition on robocalls this week – with one caveat. In Barr v. Am. Ass’n of Political Consultants, No. 19-631, July 6, 2020, the court struck down the TCPA’s special exemption for calls related to government debt collection. The outcome blindsided TCPA specialists, who had almost universally predicted the end of the road for the law on constitutional grounds.

Congress enacted the TCPA in 1991 to respond to constituent complaints regarding robocalls. 47 U.S.C. 227(b)(1)(A)(iii). Text messages were not a major issue at the time. Yet the TCPA was written to address “Auto Dialer” use. What constitutes an Auto Dialer has been the subject of much litigation in the intervening years. Congress did not clarify the matter when it amended the TCPA in 2015. The 2015 amendment exempted robocalls made in connection with collecting a debt owed to the United States.

The plaintiffs, a political organization, responded by filing a declaratory judgement action in North Carolina. Their Complaint alleged that the TCPA violated their First Amendment rights by barring them from contacting cellphone users through political robocalls. They highlighted the 2015 exemption, arguing that Congress had violated the First Amendment by favoring government debt-collection speech over political speech.

The United States District Court for the Eastern District of North Carolina acknowledged the content-based distinction. Even so, it found the statute survived strict scrutiny. The Fourth Circuit reversed in part. It struck down the 2015 carve-out. It held that the content-based distinction did not survive strict scrutiny. The rest of the statute survived mostly unscathed. The Supreme Court granted certiorari.

In a divided opinion written by Justice Kavanaugh, the court largely affirmed the Fourth Circuit. It agreed that the government-debt-collection exemption was impermissible. Yet Justice Kavanaugh determined that the exemption could be severed from the remaining TCPA robocall bar. The severance resolved the First Amendment speech-distinction issue. At the same time, it allowed the rest of the statute to stand without constitutional concerns.

Most of the other justices concurred. Several filed concurring opinions with widely divergent reasoning. The one common thread seemed to be a near universal loathing of robocalls. The court alluded to the volume of complaints the federal and state governments received from the public about the issue. The Justices seemed reluctant to champion a widely despised pest. “As a result, the plaintiffs still may not make political robocalls to cell phones, but their speech is now treated equally with debt-collection speech.” Slip Op. at 2.

Free speech advocates decried the decision as antithetical to the First Amendment. Justice Kavanaugh justified the disposition by pointing to a “decisive preference for surgical severance rather than wholesale destruction.” Simply put, why eviscerate a three-decade-old law when a narrow remedy was available? Justice Gorsuch disagreed. In his dissent, he pointed out that the severance provided no relief to the plaintiffs. He would have enjoined TCPA enforcement against them. The plaintiffs had asked the court to strike down the Auto Dialer ban. The court did not. The ostensible winners got nothing.

Finally, the court did not resolve the lingering circuit split about what constitutes a TCPA Automatic Dialer. Facebook has petitioned the court to offer guidance on the matter. It remains to be seen whether the court will elect to address the issue, having just passed on a chance to do so. Till then, companies will seek FCC guidance to navigate the Automatic Dialer shoals.

In the meantime, courts and regulators across the country are dusting off the TCPA work they had held in abeyance. After all, they know that the TCPA is not going anywhere.

 

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