With a major U.S. Supreme Court decision leading the way, recent developments continue to reshape the landscape of the Telephone Consumer Protection Act (TCPA).
First, the Federal Communications Commission (FCC) issued a Declaratory Ruling and Order on June 25th, which significantly narrows its definition of an automatic telephone dialing system (“ATDS”). An ATDS—commonly referred to as an “autodialer”—cannot be used to call or text a consumer’s cellular phone without prior express consent. As described in more detail in this prior post, the FCC stated that any device requiring manual dialing of each number to be called is not an ATDS. Although this does not resolve questions about devices with multiple capabilities or configurations, it is a significant retrenchment from prior FCC expansions of the definition of an ATDS.
This week, the U.S. Supreme Court struck down the TCPA’s exemption for “robocalls” to cellular telephones that seek to collect on federal government debts. In Barr v. American Association of Political Consultants, political consultant groups had argued that the entire TCPA should be invalidated because the government-debt exception violated the First Amendment by favoring speech to collect government debt over speech for political purposes. In a 7-2 decision, the Supreme Court ruled the exception was indeed unconstitutional, but instead severed the offending exemption from the TCPA, leaving the remainder of the law intact.
Also this week, SCOTUS agreed, after Facebook’s renewed petition, to look at the current split among several Circuit Courts of Appeals regarding the definition of an ATDS. A class action lawsuit against Facebook related to security notification text messages in Duguid v. Facebook, Inc. currently survives under the Ninth Circuit’s current interpretation of an ATDS, but it would not survive under alternative interpretations from the Seventh and Eleventh Circuits.
In light of these shifts, compliance with the TCPA requires revisiting. Barr immediately creates significant potential liability for servicers and collectors of government-backed or insured debts, including federal student loans, federally-backed mortgages, or debts to government agencies such as the Internal Revenue Service, Department of Housing and Urban Development, and Social Security Administration. Since the TCPA provides for statutory penalties ranging from $500 to $1,500 per call, it can quickly create very significant potential exposure. The upcoming review of the Duguid case may have an even more seismic impact on the TCPA landscape.