On July 6, the U.S. Supreme Court issued its ruling in Barr v. American Association of Political Consultants Inc.[1] The court declined to invalidate the Telephone Consumer Protection Act's automated calls to cellphones provision and limited its decision to striking down the government-debt exception to the statute.
In affirming the U.S. Court of Appeals for the Fourth Circuit, Justice Brett Kavanaugh, writing for a plurality, found that the "entire 1991 robocall restriction should not be invalidated, but rather that the 2015 government-debt exception must be invalidated and severed from the remainder of the statute" as an impermissible content-based restriction on speech that violated the First Amendment.[2]
He noted that seven justices determined that severing this "relatively narrow exception to the broad robocall restriction" addresses the constitutional issue in full and enables the TCPA to be fully operative as a law.[3]
The Supreme Court's ruling in this constitutional challenge expands the reach of the TCPA to encompass government-debt-related calls. The statute reverts back to the version that was in place before the specific exception was added by amendment in 2015. While Barr does not offer businesses relief from abusive TCPA litigation, there is hope on the horizon.
Next term, the court may consider the definitional issue of an automatic telephone dialing system that is the subject of a circuit split and the basis of a compelling cert petition.[4] The Federal Communications Commission may finally address the ATDS issue, among others, in a proceeding that made its way back to the FCC from the U.S. Court of Appeals for the D.C. Circuit more than two years ago.[5]
On July 2, the FCC announced that it is moving forward with the creation of a reassigned number database, perhaps signaling its renewed interest in addressing TCPA issues.[6]
Background on the Barr Case
Enacted in 1991, the TCPA, prohibits, among other things, certain calls placed to (1) cellphones using an ATDS or a prerecorded or artificial voice and (2) residential lines using a prerecorded or artificial voice.[7] The automated call ban initially contained two exceptions, both of which remain in place today. Calls made with the prior express consent of the called party are excepted, as well as calls placed for emergency purposes.[8]
In 2015, Congress amended the TCPA in connection with the Bipartisan Budget Act, and added a third statutory exception for calls made solely to collect a debt owed to or guaranteed by the U.S.[9] This exception is commonly referred to as the government-debt exception.
In April 2016, the American Association of Political Consultants and three other political organizations challenged the constitutionality of the automated call ban based on the government-debt exception. They alleged that the exception was a content-based restriction on speech that should be subject to strict scrutiny.[10]
The district court granted summary judgment in favor of the government and held that while the exception was content-based, it was narrowly tailored to further the government's compelling government interest in collecting on its debts and survived strict scrutiny review.[11] The court also held that the government-debt exception did not undermine the important privacy interests that the TCPA was enacted to protect.[12]
The Fourth Circuit reversed the district court, holding that the government-debt exception violated the First Amendment.[13] But the Fourth Circuit did not strike down the automated call ban in its entirety. Instead, it held that the proper remedy was to sever the specific exception, allowing the remainder of the TCPA's automated call ban, as it had existed from 1991-2015, to stand.[14] The Fourth Circuit subsequently denied a petition for rehearing en banc.[15]
Supreme Court Review
The solicitor general filed a petition for a writ of certiorari in the Supreme Court on Nov. 14, 2019, which was granted on Jan. 10. In an interesting posture — given that the remedy afforded by the Fourth Circuit did not actually benefit their interests and that a successful First Amendment challenge resulted in a more expansive speech restriction — respondents urged the court to review the Fourth Circuit's severability holding.[16]
Oral argument took place on May 6, with the justices principally focused on the severability aspect of the Fourth Circuit's decision. Several justices referenced the TCPA's popularity, which was notable given FCC Chairman Ajit Pai's observation that the statute has become the poster child for lawsuit abuse.[17]
Analysis of the Supreme Court's Ruling
A majority of the court held that the government-debt exception was an impermissible content-based restriction on free speech that did not survive strict scrutiny review. In his opinion, Justice Kavanaugh noted the government-debt exception demonstrates favoritism toward speech made for collecting government debt over other types of speech:
Under § 227(b)(1)(A)(iii), the legality of a robocall turns on whether it is "made solely to collect a debt owed to or guaranteed by the United States." A robocall that says, "Please pay your government debt" is legal. A robocall that says, "Please donate to our political campaign" is illegal. That is about as content-based as it gets.[18]
As a result of this determination, a majority found that strict scrutiny applied, which the government had conceded it could not satisfy with respect to the government-debt exception:
Although collecting government debt is no doubt a worthy goal, the Government concedes that it has not sufficiently justified the differentiation between government-debt collection speech and other important categories of robocall speech, such as political speech, charitable fundraising, issue advocacy, commercial advertising, and the like.[19]
A majority of the justices therefore determined that the government-debt exception is unconstitutional.[20] In his opinion, Justice Kavanaugh...
