The U.S. District Court for the Northern District of California recently held that an amendment to the federal Telephone Consumer Protection Act (TCPA) enacted as part of the Bipartisan Budget Act of 2015 applies to calls made in 2014 “solely to collect a debt owed to or guaranteed by the United States,” and therefore granted summary judgment in favor of the defendant.
A copy of the opinion is available at: Link to Opinion.
The plaintiff filed a putative class action under the TCPA alleging that, in or around January 2014, the defendant student loan lender began calling his cellular phone in an attempt to collect a student loan debt. The plaintiff asserted that he requested that the defendant not contact him by means other than mail, but that the calls supposedly continued, including two calls placed on Jan. 29, 2014.
As you may recall, the TCPA in relevant part prohibits the making of any call, without the prior express consent of the called party, using an automatic telephone dialing system or an artificial or prerecorded voice, to any telephone number assigned to a cellular telephone service. 47 U.S.C. § 227(b)(1)(A).
As you may also recall, the Bipartisan Budget Act of 2015 (at section 301), signed into law on Nov. 2, 2015, amended the TCPA to exclude calls “made solely to collect a debt owed to or guaranteed by the United States.” See 47 U.S.C. § 227(b)(1)(A)(iii).
The parties did not dispute that the loans at issue were federally funded student loans, and therefore the defendant argued that the issue was “whether the TCPA amendment can be applied retroactively to bar plaintiff’s current action.”
The federal trial court noted that the Supreme Court of the United States “addressed the issue of retroactive application of a statute in Landgraf v. USI Film Products, 511 U.S. 244 (1994).” In Landgraf, the Supreme Court of the United States acknowledged that “retroactivity is not favored in the law,” and held that “[a] statute does not operate retrospectively merely because it is applied in a case arising from conduct antedating the statute’s enactment,” but “[r]ather, the court must ask whether the new provision attached new legal consequences to events completed before its enactment.” Id. at 269-70.
With those principles in mind, the Supreme Court of the United States articulated the relevant test as follows:
When a case implicates a federal statute enacted after the events in suit, the court’s first task is to determine whether Congress has expressly prescribed the statute’s proper reach. If Congress has done so, of course, there is no need to resort to judicial default rules. When, however, the statute contains no such express command, the court must determine whether the new statute would have retroactive effect, i.e., whether it would impair rights a party possessed when he acted, increase a party’s liability for past conduct, or impose new duties with respect to transactions already completed. If the statute would operate retroactively, our traditional presumption teaches that it does not govern absent clear congressional intent favoring such a result.
511 U.S. at 280.
Under this test, the parties disputed whether “Congress has expressly prescribed the statute’s proper reach.” The defendant argued that Congress was silent on the amended statute’s retroactivity. However, the plaintiff argued that the 2015 amendment to the TCPA “requires the [FCC] to issue regulations to implement its TCPA changes within nine (9) months of the date of the enactment of the bill.” Because those implementing regulations have not been prescribed, the plaintiff argued the amendment does not apply retroactively.
The Court here rejected the plaintiff’s argument, as the plaintiff cited no authority for the position that a statute has no legal effect until implementing regulations are put in place. Instead, the Court held that the amendment is silent on the issue of retroactivity.
Accordingly, under Landgraf, the Court was required to address the next part of the test — i.e., whether retroactive application “would impair rights a party possessed when he acted, increase a party’s liability for past conduct, or impose new duties with respect to transactions already completed.” The Court found that none of these three conditions were met.
More specifically, the Court held that rather than “increas[ing] a party’s liability for past conduct,” the 2015 TCPA amendment “decreases liability for past conduct, by creating an exception for telephone calls ‘made solely to collect a debt owed to or guaranteed by the United States.’” In addition, the Court held that the 2015 TCPA amendment did not “impose new duties with respect to transactions already completed,” but instead “eliminated certain duties with respect to completed transactions.”
Perhaps more importantly, the Court also held that the 2015 TCPA amendment would not “impair rights a party possessed when he acted,” because “merely impairing the ability to bring a lawsuit does not provide a sufficient basis, under Landgraf, to bar retroactive application.”
The Court cited Southwest Center for Biological Diversity v. U.S. Dept. of Agriculture, 314 F.3d 1060 (9th Cir. 2002), in which the Ninth Circuit held that an exemption enacted during the pendency of a lawsuit was properly applied to bar the claims raised by the plaintiff in that case.
The Ninth Circuit rejected the argument that the plaintiff’s rights would be impaired by retroactive application of the amendment, holding that the plaintiff in Southwest Center for Biological Diversity “took no action in reliance on prior law that qualifies under Landgraf.” 314 F.3d at 1062. The Ninth Circuit also “specifically held that the plaintiff’s ‘expectation of success in its litigation is not the kind of settled expectation protected by Landgraf’s presumption against retroactivity,’ because ‘if that expectation were sufficient then no statute would ever apply to a pending case unless Congress expressly made it so applicable,’ which would render the Landgraf test ‘pointless.’ Id. at 1062, n.1.”
Thus, the Court in the case at hand held that the plaintiff failed to meet any of the three conditions identified by the United States Supreme Court in Landgraf, therefore “that applying the TCPA amendment would not have a ‘retroactive effect,’ as that term was defined by the Landgraf Court.”
Moreover, again citing the Ninth Circuit’s ruling in Southwest Center for Biological Diversity, the Court also held that “application of the TCPA amendment would further Congress’s intent to allow telephone calls to be placed in the furtherance of collecting debts owed to or guaranteed by the United States.”
Accordingly, the Court held that the 2015 TCPA amendment applied to exempt the calls allegedly placed by defendant in 2014, and granted the defendant’s motion for summary judgment.