The U.S. Supreme Court has agreed to decide whether the Telephone Consumer Protection Act’s exception from its automated call restriction for calls to collect government debts violates the First Amendment of the U.S. Constitution.  The Court also agreed to decide whether the proper remedy for any constitutional violation is to sever the exception from the remainder of the TCPA. 

The TCPA generally prohibits the use of an automatic telephone dialing system or an artificial or prerecorded voice to make calls to a cellular phone.  However, it includes an exception for emergency calls and calls made with the prior express consent of the called party.  In 2015, Congress amended the TCPA to create another exception for calls “made solely to collect a debt owed to or guaranteed by the United States.”  The petition for a writ of certiorari filed by the Solicitor General on behalf of the U.S. and the FCC in Barr v. American Association of Political Consultants, Inc. sought review of the Fourth Circuit’s decision which held that the TCPA’s government debt exception violated the First Amendment’s Free Speech Clause.  Viewing the exception as a form of content-based discrimination, the Fourth Circuit subjected the exception to strict scrutiny and held that it failed such scrutiny.  The Fourth Circuit also ruled that the government debt exception should be severed from the rest of the TCPA, leaving the TCPA’s general automated call prohibition intact.  

In his certiorari petition, the Solicitor General argued that because the TCPA exception is directed at communications concerning a discrete type of economic activity (i.e., collecting government debts) and not at the words used in the communications, the Fourth Circuit erred in concluding that the exception discriminated on the basis of content and subjecting it to strict scrutiny.  The Solicitor General observed in his petition that “if a focus on debt-collection communications were treated as a form of content discrimination…the FDCPA would be subject to a potential First Amendment challenges.”

We expect oral argument in the case to be held this Spring and a decision to be issued before the end of the Supreme Court’s term in June 2020.