On July 6, 2020, the U.S. Supreme Court issued its decision in Barr v. American Association of Political Consultants, 140 S. Ct. 2335 (2020), holding that the government-backed debt exception to the Telephone Consumer Protection Act (“TCPA”) rendered the statute’s cellphone autodialer ban an unconstitutional restriction on free speech. (You can read more about the Supreme Court’s highly fractured decision in Barr in our August 2020 issue.) Since then, federal courts in Louisiana and Ohio have grappled with an issue left open by Barr: whether the TCPA’s autodialer provision should be deemed wholly unconstitutional during the five-year period in which the government-debt exception was operative, or whether the Supreme Court’s severance of the exception can be applied retroactively. By determining that the autodialer provision was wholly unconstitutional during the five-year period, these two district courts concluded that they lacked subject-matter jurisdiction to enforce the autodialer ban even against defendants who made robocalls for purposes other than to collect government debt. These rulings thus open the door for other TCPA defendants to raise similar challenges.
- In 2015, Congress amended § 227(b)(1)(A)(iii) of the TCPA’s general autodialer restriction to permit robocalls made to collect debts owed to or guaranteed by the federal government, creating a “government-debt exception.”
- In Barr, the Supreme Court considered a First Amendment challenge to this exception. The case was brought by political groups that wanted to make robocalls for political ads and challenged the difference in treatment for government-debt calls as a content-based restriction impermissibly favoring one type of speech over others. The Supreme Court agreed and, in a plurality opinion, struck down the “government-debt exception” as violating free speech. A plurality of seven Supreme Court justices, in three separate opinions, also agreed that the 2015 debt-collection amendment was severable:
- In footnote dicta, Justice Kavanaugh’s plurality opinion (joined by two other justices) suggested that the Barr decision would not “negate the liability of parties who made robocalls covered by the robocall restriction” other than the government-debt restriction during the timeframe in which the exception remained operative.
- By contrast, two justices found the government-debt exception was not severable from the rest of the 2015 amendment to the statute. Justice Gorsuch, joined by Justice Thomas, wrote that by “shield[ing] only government-debt collection callers from past liability under an admittedly unconstitutional law,” the plurality “[wound] up endorsing the very same kind of content discrimination [it said it was] seeking to eliminate.”
- These two competing viewpoints—dicta from Justice Kavanaugh’s plurality opinion and Justice Gorsuch’s dissenting opinion—became the focal point of two subsequent district court rulings concerning whether the unconstitutional provision remained enforceable during the relevant five-year period as to litigants not covered by the government-debt exception.
- In Creasy v. Charter Communications, Inc., No. CV 20-1199, 2020 WL 5761117 (E.D. La. Sept. 28, 2020), a Louisiana district court was asked to consider this split. There, plaintiffs alleged that, prior to the decision in Barr, Charter placed more than 130 calls or texts to plaintiffs without consent. In ruling on a motion to dismiss, the district court determined that Justice Gorsuch had the better argument “as a matter of law and logic.” The court concluded that the unconstitutional exception was so bound up with the rest of § 227(b)(1)(A)(iii) that the entire provision was unconstitutional between its 2015 amendment and the 2020 Barr ruling, including at the times Charter called the plaintiffs.
- Because one of the 130 robocalls/texts occurred after the Barr decision, however, the court did not dismiss the case in its entirety. Instead, it stayed proceedings pending the Supreme Court’s decision in Facebook, Inc. v. Duguid, No. 19-511, which may soon resolve a circuit split concerning the TCPA’s definition of “autodialers.” You can read more about that appeal in our August 2020 issue.
- An Ohio district court reached a similar conclusion in Lidenbaum v. Realgy, LLC, No. 1:19-cv-02862 (N.D. Ohio Oct. 29, 2020). There, prior to the Barr ruling, the defendant electric and gas supplier placed two calls to the named plaintiff. The Ohio court also found it lacked subject-matter jurisdiction to enforce the unconstitutional statute, holding that “severance of the government-debt exception applied only prospectively” and, thus, the statute could not be constitutionally applied retroactively. The court reasoned that an attempt to enforce § 227(b)(1)(A)(iii) during the five-year period by severing the government-debt exception would itself amount to “an unconstitutional content-based restriction that improperly favors some speech over other speech.” As Chief Judge Patricia Gaughan put it, “[i]t would be an odd result to say the least if the judiciary could accomplish by severance that which Congress could not accomplish by way of amendment.”
- Because the TCPA has a five-year statute of limitations, the courts’ reasoning in Creasy and Lidenbaum—which would invalidate claims relating to robocalls between the effective date of the 2015 government-debt exception through entry of final judgment in Barr—could potentially extinguish the lion’s share of currently pending TCPA claims (though not future TCPA claims) if other courts follow suit.
- Read the district court decisions in Creasy here and Lidenbaum here.
