Supreme Court Severs TCPA’s Government Debt-Collection Exception as Content-Based Restriction on Free Speech, but Leaves Autodialer Restriction

The Supreme Court of the United States recently analyzed the Telephone Consumer Protection Act (TCPA), 47 U.S.C. § 227, et seq., highlighting the importance of the Act’s ban on “robocalls,” (i.e., calls placed using an “automatic telephone dialing system” or “autodialer”), but leaving key questions unanswered. In Barr v. American Association of Political Consultants, Inc., the Court upheld the TCPA but severed Congress’s 2015 amendment that allowed entities to make robocalls to collect government-backed debt.

Enacted in 1991, the TCPA generally prohibits robocalls to cell phones and home phones. At the heart of the Court’s opinion here was the decision whether to uphold Congress’s 2015 amendment which allowed an exception to the general ban on robocalls for entities collecting government-backed debt. The plaintiffs, organizations that participate in the political system, make calls to citizens for a multitude of purposes, such as discussing political issues, soliciting donations, and conducting polls. If robocalls to cellphones were allowed for political outreach, the plaintiffs believe that their efforts would be more effective and efficient. The plaintiffs filed a declaratory judgment action against the U.S. Attorney General and the Federal Communications Commission to invalidate the TCPA’s entire 1991 autodialer restriction, arguing that allowing certain entities to make robocalls to collect government-backed debt, but prohibiting other robocalls, was a content-based restriction that violated the First Amendment.

The Court agreed with the plaintiffs, but not entirely. Initially, the Court found the government debt collection exception to be an impermissible content-based restriction on speech that did not survive strict scrutiny and thereby violated the First Amendment. However, the Court did not agree that the TCPA’s autodialer restriction should be invalidated in its entirety. Instead, seven justices agreed that severing the government debt collection provision solved the constitutional issues and allowed the rest of the TCPA to stand. The effect of this opinion reverts the TCPA back to its version before the exception was added in 2015.

This decision allows the flood of TCPA litigation to continue, now with the anticipated filing of claims against entities making calls to collect federally-backed debt.

Importantly, the Court’s decision leaves some key questions regarding TCPA litigation unanswered, for now. Specifically, while the TCPA broadly prohibits most calls “using any automatic telephone dialing system” (ATDS), 47 U.S.C. § 227(b)(1)(A), (commonly referred to as “autodialers”), the Court did not address what types of calling devices constitute ATDSs under the statutory definition – an issue that has raged at the forefront of TCPA litigation for years, resulting in a split among the Circuits.

However, on July 9, 2020, the Supreme Court granted a long-pending petition for certiorari in Facebook, Inc. v. Duguid, Noah, et al., to address the autodialer question at the heart of the Circuit split: i.e., 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’s ruling in Duguid should at least bring some clarity to TCPA autodialer litigation.

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