As the world waits to see whether the United States Supreme Court will consider the constitutionality of the Telephone Consumer Protection Act, a magistrate judge in the United States District Court for the Southern District of Florida recently weighed in on the issue, denying a defendant’s motion to dismiss a class action where the defendant contended that the TCPA unconstitutionally limits commercial speech. In Grigorian v. Tixe Realty Services, the defendant sought to expand the Eleventh Circuit’s recent holdings and asked the Court to declare the TCPA unconstitutional in its entirety. The magistrate judge, however, concurred with the Fourth and Ninth circuits’ holdings, finding that the debt collection exemption might be unconstitutional, but that severing the provision would save the remainder of the TCPA.

As we reported here, the Fourth Circuit struck down the government-backed debt provision from the TCPA in April. The Court concluded that the exemption is content-based: “The relationship between the federal government and the debtor is only relevant to the subject matter of the call. In other words, the debt collection exemption applies to a phone call made to the debtor because the call is about the debt, not because of any relationship between the federal government and the debtor.”

But the Fourth Circuit stopped short from invalidating the TCPA entirely, finding that the statute could still constitute a meaningful law without the government exemption. The history of the TCPA was a meaningful barometer for the Court, which noted that the exemption was added in 2015 – a full 24 years after the statute’s initial passage – and that the TCPA successfully had operated without the exemption.

The Ninth Circuit followed suit in Duguid v. Facebook in June, similarly finding that the debt collection exemption is an impermissible content-based restriction of free speech. Also, like the Fourth Circuit before it, the Ninth Circuit declined to invalidate the TCPA as a whole, finding that severance of the exception was an acceptable solution. The Ninth Circuit denied Facebook’s petition for rehearing, but the fight may be ongoing. The social media giant petitioned the Supreme Court in November for certiorari on both the debt collection exemption and the Ninth Circuit’s definition of an automatic telephone dialing system. In other words, this may be just the beginning of another fight over the constitutionality of the TCPA.