The Telephone Consumer Protection Act (TCPA) remains in place, but the exception permitting robocalls for government debt collection has fallen, in a decision by the US Supreme Court addressing the constitutionality of the statute. Barr v. American Association of Political Consultants, No. 19-631 (July 6, 2020). Although some commentators had predicted that the Court might use the opportunity to strike down the robocalling provisions of the TCPA as an unconstitutional restriction on the right to free speech, the Court opted for a more limited path. In a case where the justices seemed mostly in agreement on the appropriate outcome, if not the reasoning, six of the justices agreed that the exception for government debt collection—allowing such calls to be made without the same restrictions placed on other calls—was an impermissible content-based distinction under the First Amendment. But there was little appetite for striking down the TCPA in its entirety. Seven of the justices agreed that the appropriate remedy was severing the unconstitutional exception, leaving the remainder of the TCPA in place. Only Justices Gorsuch and Thomas advocated striking down the TCPA’s broader restrictions on robocalls.

The Court’s decision affirms the judgment of the US Court of Appeals for the Fourth Circuit, which had held that the government-debt exception violated the First Amendment because it was a content-based restriction on speech. In striking down the government-debt exception and affirming the decision below, Justice Kavanaugh delivered the judgment of the Court, reasoning that the TCPA exception for government debt collection was “about as content-based as it gets.” By example, Justice Kavanaugh observed that a robocall that saying, “Please pay your government debt” would be legal, but a robocall saying, “Please donate to our political campaign” would be illegal. 

More significant than the fall of the exception was what the Court did not do. There was some speculation that the Court would strike down the TCPA in its entirety, thereby invalidating the restrictions on automated dialing that apply to automated and prerecorded calls generally, including political calls. The petitioners argued that the government-debt exception could not be appropriately severed from the statute as a whole, which would imply that the entire statute could be invalidated. Indeed, the petitioners in the lawsuit were political groups that sought relief from the ban on making robocalls for purposes other than government debt collection. Seven justices, however, disagreed that the entire statute should fall. Justice Kavanaugh applied a presumption in favor of severability, reasoning that the remainder of the TCPA is capable of functioning independently and that the exception should be severed. It was also significant to Justice Kavanaugh that, since 1934, the Communications Act in which the TCPA is incorporated has contained an express severability clause.
 
The argument for striking down the entire statute did find traction with Justices Gorsuch and Thomas. Justice Gorsuch stated that, “In my view, the TCPA’s rule against cellphone robocalls is a content-based restriction that fails strict scrutiny. The statute is content-based because it allows speech on a subject the government favors (collecting its debts) while banning speech on other disfavored subjects (including political matters).” Justices Gorsuch and Thomas would have granted an injunction against enforcement of the TCPA against the petitioners for other types of robocalls (not government debt collection), a result which would have had the effect of striking down much of the TCPA. 

Looking ahead, it seems plausible that the Supreme Court will add another TCPA case to its docket next year, in order to resolve a circuit split over the definition of “automatic telephone dialing system.” A petition for certiorari remains pending in an appeal from the US Court of Appeals for the Ninth Circuit on this issue, in Facebook, Inc. v. Noah Duguid, Case No. 19-511. The question on appeal is whether the definition of an ATDS encompasses any device that can “store” and “automatically dial” telephone numbers, even if the device does not use a random or sequential number generator. In Facebook, the Ninth Circuit applied an expansive definition of an ATDS, which includes any device that can “store” and “automatically dial” telephone numbers, even if the device does not use a random or sequential number generator. In recent months, the Second Circuit has adopted a similar standard, splitting with the Seventh and Eleventh Circuits, which have applied narrower standards.

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