On July 6, 2020, the United States Supreme Court affirmed a ruling by the Court of Appeals for the Fourth Circuit, which found that an exception allowing government debt-related robocalls to cell phones is unconstitutional and must be severed from the rest of the Telephone Consumer Protection Act of 1991 ("TCPA"). Barr v. Am. Assn. of Political Consultants, Inc., No. 19-631, ' S.Ct. '- (2020). Though the Court severed the offending exemption from the rest of the TCPA rather than invalidating the entire TCPA, the Court's opinion provides a roadmap to making similar constitutional attacks on other portions of the TCPA, including regulations implemented by the Federal Communications Commission ("FCC").
The TCPA generally prohibits calls and text messages to cell phones using an automatic telephone dialing system or an artificial or prerecorded voice, i.e. robocalls. As Justice Kavanaugh put it, the TCPA imposes "tough" statutory penalties of $500 per call or text in violation, or up to $1,500 per call/text for a knowing or willful violation. Such statutory penalties make the TCPA favored among consumer class action plaintiffs' counsel. The TCPA applies not only to marketing calls, but most other kinds of calls, including debt collection calls. In 2015, Congress added a government-debt exception for calls made solely to collect a debt owed to or guaranteed by the United States.
In this case, the American Association of Political Consultants, Inc., and other political and nonprofit organizations (the "Plaintiffs") sued the United States Attorney General and the FCC (the "Government"), arguing that the government-debt exception violated the First Amendment by favoring debt-collection speech over political and other speech. The Plaintiffs argued that the proper remedy would be to invalidate the entire TCPA...
