Sixth Circuit rules unconstitutionality of 2015 TCPA amendment did not invalidate claims for post-2015 TCPA violations not involving the collection of government debt

Ballard Spahr LLP

Ballard Spahr LLP

The U.S. Court of Appeals for the Sixth Circuit recently ruled that the unconstitutionality of the 2015 TCPA amendment that created an exception to the robocall restriction for calls made to collect debts owed to the federal government did not invalidate the plaintiff’s claims for TCPA violations based on robocalls he received in 2019 and 2020 advertising utility services.

The TCPA was amended in 2015 to create an exception from the TCPA’s robocall restriction for calls made “solely to collect a debt owed to or guaranteed by the United States.”  In 2020, in Barr v. American Association of Political Consultants, the U.S. Supreme Court ruled that the exception violated the First Amendment of the U.S. Constitution.  The Court also decided that the proper remedy for the constitutional violation was to sever the exception from the remainder of the TCPA, thereby making calls to collect government debts subject to the TCPA’s robocall restriction and otherwise leaving the restriction in place for any other calls to which it applied.

In Lindenbaum v Realgy, LLC, the plaintiff filed a putative class action lawsuit alleging violations of the TCPA’s robocall restriction based on two robocalls he received from the defendant in late 2019 and early 2020 advertising electricity services.  After the Supreme Court’s decision in American Association of Political Consultants (AAPC), the district court granted the defendant’s motion to dismiss.  It concluded that because severance of the exception in AAPC only applied prospectively, the entire TCPA robocall restriction was unconstitutional from the date of the 2015 amendment until the Supreme Court severed the 2015 amendment.  As a result, according to the district court, the TCPA could not provide a basis for federal jurisdiction for alleged TCPA robocall violations arising before the exception was severed.

In reversing the district court’s dismissal, the Sixth Circuit ruled that AAPC applied retroactively to invalidate the government debt exception but did not render the entire TCPA robocall restriction void until the exception was severed in AAPC.  According to the Sixth Circuit, in AAPC, the Supreme Court “recognized only that the Constitution had ‘automatically displace[d]’ the government-debt-collector exception from the start, then interpreted what the statute has always meant in its absence.”  Accordingly, the TCPA robocall restriction remained in place as if the exception never existed.

The Sixth Circuit also rejected the defendant’s attempt to invoke the First Amendment as a defense based on its argument that because government debt collectors would have a due process defense to liability for robocalls made before AAPC, holding the defendant liable for pre-AAPC robocalls “would create the same content-discriminatory system that the Court held unconstitutional in AAPC.”  According to the Sixth Circuit, “the centuries-old rule that the government cannot subject someone to punishment without fair notice is not tied to speech.”  In its view, “[w]hether a debt collector had fair notice that it faced punishment for making robocalls turns on whether it reasonably believed that the statute expressly permitted its conduct.  That, in turn, will likely depend in part on whether the debt collector used robocalls to collect government debt or non-government debt.”

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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