Senator Manchin Narrows Path To Undoing TCPA Win

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Senator Joe Manchin of West Virginia has confirmed he will not vote to eliminate the Senate filibuster rule. The news is a timely bonus for Texas businesses buoyed by the recent decision in Facebook, Inc. v. Duguid, in which the Supreme Court sharply limited the types of phone dialers implicating the Telephone Consumer Protection Act (“TCPA”) and its harsh statutory damages.

Proposals to amend the Act should now require support from moderate Republicans to reach an up-or-down vote in the Senate. If so, we can rule out anti-business legislation like a 2019 bill that proposed to bar calls made with “equipment that makes a series of calls to stored telephone numbers, including numbers stored on a list” (i.e., the 9th Circuit approach unanimously rejected in Duguid). We also can expect that industry trade organizations will have time and opportunity for input, possibly interjecting a “human intervention” test, an “actual use” focus, or other limitations.

The biggest threat to a bipartisan approach to any rewrite of the Act is budget reconciliation, which Democrats might be able to use to avoid a Senate filibuster. Amending the core of the TCPA through this process may not be allowed under the “Byrd Rule,” which limits the type of legislation eligible for enactment via budget reconciliation. President Biden did not, for example, pursue a minimum wage hike via budget reconciliation after the Senate parliamentarian ruled it would not have a substantial budgetary impact. Whether the parliamentarian would rule similarly now remains to be seen.

Of note, there is some precedent for amending the TCPA through reconciliation. In 2016, Congress used the process to exempt calls made to collect federal student loans from the TCPA (later struck down as unconstitutional). But the reasoning for acting through budget reconciliation was more straightforward in that instance. The exemption was directly tied to calls made in the collection of federally owned and guaranteed debts. By removing the threat of liability for those calls, Congress ensured that government receipts meaningfully would increase. Whether similar reasoning holds if Congress amends the statute generally in a way that could decrease government receipts is unclear. Nor are there likely to be any existing studies from the Congressional Budget Office projecting federal student loan collections post-Duguid against the expected collections that might follow any of the amendments to be proposed.

What’s clear is that we are not done with the TCPA yet. Stay tuned!

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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