The Nine will review decision striking down debt collector exemption

Banned in D.C.?

For the layperson, the Telephone Consumer Protection Act (TCPA) can seem full of surprises.

The TCPA, as everyone knows, exists to protect consumers from the ever-worsening onslaught of automatic phone calls. Less well-known, however, is the fact that it excepts certain auto-dialers from its own provisions. A 2015 amendment to the TCPA allows auto-dialed calls from debt collectors seeking repayment on behalf of the federal government.

This exception did not sit well with organizations that were subject to the full might of the TCPA. The American Association of Political Consultants (can you imagine their board meetings?) and several co-plaintiffs sued the Federal Communications Commission (FCC) in the Eastern District of North Carolina in 2016, arguing that the exception violated the First Amendment’s free speech clause because the statute gave preferential treatment to certain types of automated calls based on their content. They asked for the entire auto-dialer ban to be overturned, which would have effectively ended the TCPA.

The Takeaway

The Eastern District granted the FCC summary judgment in 2018, and the plaintiffs appealed to the Fourth Circuit Court of Appeals, which ruled that the exception (i) undermined the privacy aims of the Act, (ii) constituted a content-based restriction in violation of the First Amendment and (iii) did not survive strict scrutiny analysis. But the Fourth Circuit nonetheless held that the TCPA shouldn’t be thrown out wholesale. Rather than strike down the entire Act as unconstitutional, as the plaintiffs urged, the circuit court opted to sever the exception from the statute (i.e., delete it).

And so, here’s the big news: The plaintiffs petitioned for a writ of certiorari from the U.S. Supreme Court, which was granted. This means that the TCPA will be subject to a searching review by the highest court in the land.

The questions presented:

“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.”

It’s the second question that carries the most weight for the future of the Act. We’ll see what happens, but in any case, we’ll have plenty to talk about.