The Supreme Court’s July 6th decision in Barr v. American Association of Political Consultants, Inc. quickly dashed hopes that the sea of litigation centered around the Telephone Consumer Privacy Act (“TCPA”) would come to an end.
The TCPA provides consumers with certain protections against unsolicited calls and texts. Among other things, the TCPA generally prohibits businesses from using an “automatic telephone dialing system” (“ATDS”) or artificial or prerecorded voice to make a call or text without obtaining the call recipient’s consent. While a laudable goal in theory, the vague statutory language, particularly with regards to what constitutes an ATDS, has made the TCPA an easy target for consumer class action lawsuits and created a quagmire of cases for businesses to wade through when trying to determine whether their actions may violate the law.
Barr concerned the 2015 carve out that exempted from the TCPA debt collectors’ calls pertaining to collection of government debts. Plaintiffs argued that these exemptions from the prohibition were impermissibly content-based, thus violating the First Amendment. Instead of seeking to sever the government debt exception, the plaintiffs sought to strike the entire TCPA as unconstitutional under the First Amendment—a result that would have been welcomed by industry. The Fourth Circuit agreed with the plaintiffs—but instead of striking down the autodialer ban in its entirety, severed the exemption for calls regarding government-backed debts.
The Supreme Court affirmed this ruling. In his opinion for the plurality, Justice Kavanaugh explained that while the Government could not meet its burden of showing that the government debt collection exemption satisfied the strict scrutiny standard for content-based restrictions, the plaintiffs also failed to demonstrate that the narrow exception reflected Congress’s intent to remove robocall restrictions entirely. The Court emphasized that striking down the offending provision—rather than the statute in its entirety—fell neatly within existing precedent on severability.
The Supreme Court’s decision in this case is notable in several respects. First, it affirms the validity of the statute. Second, the narrowness of its holding means that many of the more litigated aspects of the TCPA—particularly how you define an autodialer—still lack a clear answer, which is a loss for businesses who wish to communicate with and market to customers via calls and texts. And finally, it has indicated that, in at least some instances, the answer to a free speech challenge alleging some parties are given more rights than others can be to deny those rights to everyone, rather than to extend them to the challenging party. Those hoping this decision would bring some long-awaited clarity to the TCPA will have to keep waiting. The wait, however, may not be too long. The FCC recently announced plans on rolling out the long-awaited reassigned telephone numbers databases which, when released, will afford businesses some relief from TCPA claims based on reassigned phone numbers. The FCC is also still considering comments on the TCPA in light of the 2018 D.C. Circuit ruling striking down portions of the TCPA as arbitrary and capricious, so businesses may eventually get some relief on some of the thornier TCPA issues, such as the definition of an autodialer.
