In a much-anticipated Supreme Court decision, Barr v. American Association of Political Consultants, sure to impact the future of the Telephone Consumer Protection Act (“TCPA”), the Court addressed the issue of whether the government-debt exception to the TCPA’s automated-call restriction violates the First Amendment, and whether the proper remedy for any constitutional violation is to sever the exception from the remainder of the statute.
The Supreme Court concluded that Congress impermissibly favored government-debt collection speech over political and other speech, in violation of the First Amendment, and thus must invalidate the government-debt collection exception of the TCPA, and sever it from the remainder of the statute. Despite concerns that the Court would address the constitutionality of the TCPA in its entirety, the Court left untouched the TCPA’s general restriction on calls made with an “automatic telephone dialing system” (“ATDS”).
Applying traditional severability principles, seven Members of the Court conclude that the entire 1991 robocall restriction should not be invalidated, but rather that the 2015 government-debt exception must be invalidated and severed from the remainder of the statute. . . . As a result, plaintiffs still may not make political robocalls to cell phones, but their speech is now treated equally with debt-collection speech.
Addressing the decision to leave the remainder of the TCPA intact, the Court highlighted the “normal rule”, introduced in Free Enterprise Fund v. Public Company Accounting Oversight Bd., where the Court concluded that, “Generally speaking, when confronting a constitutional flaw in a statute, we try to limit the solution to the problem, severing any problematic portions while leaving the remainder intact.”
This is not the first time, of late, that the Supreme Court has been petitioned to address the constitutionality of the TCPA. Back in October of 2019, the Court was petitioned to review the following issues: 1) whether the TCPA’s prohibition on calls made by ATDS is an unconstitutional restriction of speech, and if so whether the proper remedy is to broaden the prohibition to abridge more speech, and 2) whether the definition of “ATDS” in the TCPA encompasses any device that can “store” and “automatically dial” telephone numbers, even if the device does not “us[e] a random or sequential number generator.” The Court has still not announced whether it will accept this petition.
While the impact of the Supreme Court’s decision on the TCPA is limited, given that only the government-debt exception was severed, it still provides greater certainty and clarity for organizations facing TCPA litigation. Organizations are advised to review and update their telemarketing and/or automatic dialing practices to ensure TCPA compliance.