The retroactivity of the Supreme Court’s decision in Barr v. AAPC is back before the Supreme Court to decide—if, that is, it grants the petition for certiorari that was just filed by the Defendant in Lindenbaum v. Realgy.

Some background may help. As our regular readers know, Barr v. AAPC held that the TCPA’s exemption for federal debt-collection calls—and only federal debt-collection calls—was a content-based regulation of speech that violated the First Amendment. But rather than strike down all of the statute’s restrictions on automated equipment, the Court saved them by severing that one exemption from the statute.

In doing so, however, the Court all but ignored the practical consequence of its holding—that is, can there be liability for calls that were made before the Court remedied the statute’s constitutional defect?  Put differently, can there be liability for calls made between November 2, 2015 (when the exception took effect and the statute become unconstitutional) and July 6, 2020 (when the exception was severed and the statute became constitutional again)?

Notably, two of the Court’s four opinions acknowledged that this might be an issue. And neither of them agreed with the other or commanded a majority of the Court. Justice Kavanaugh relegated the issue to a footnote. In his view, while “no one should be penalized or held liable” for trying to collect a federal debt while the debt-collection exception was on the books, the Court could “not negate the liability” that would arise from other kinds of calls that were “covered by the robocall restriction.” But the irony of that position was not lost on Justice Gorsuch. “A holding that shields only government-debt collection callers from past liability under an admittedly unconstitutional law would,” he wrote, “wind up endorsing the very same kind of content discrimination we say we are seeking to eliminate.”

Perhaps not surprisingly given the number and nature of TCPA cases, it took barely a year for that issue to create a split of authority and make its way back to the Court for further review. Amicus briefs in support of the defendant’s petition are due within 30 days of its docketing. We will keep a close eye on the docket and report back on important developments.