Supreme Court delivers a decision holding back robocall conflagration

On the Brink

Back in May, the Supreme Court took up a momentous Telephone Consumer Protection Act (TCPA) case, one possible outcome of which would have gutted the TCPA altogether.

That outcome has been averted.

But let’s back up and review what was at stake. The case, Barr v. American Association of Political Consultants, Inc., presented two questions to the Court:

“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 Chronicles

The case dealt with an exception that was added to the TCPA in 2015 allowing autodialed calls from debt collectors seeking repayment on debts owed to the federal government.

The plaintiffs sued the Federal Communications Commission (FCC) in North Carolina’s Eastern District in 2016. They claimed that the government-debt exception violated the First Amendment because it represented a content-based restriction on speech – preferential treatment for debt collectors calling on behalf of the feds. They sought to have the entire autodial ban rescinded based on this inherent unfairness.

Political consultants certainly have a vested interest in making limitless autodialed calls, so why should they be punished?

The FCC won summary judgment, and the case got kicked up to the Fourth Circuit in 2018. The appellate court split the decision: While the exception violated the First Amendment, it should be severed from the rest of the TCPA.

The plaintiffs petitioned the Supreme Court in late 2019, asking for one more swing. They were disappointed by the ruling.

The Takeaway

“Six Members of the Court today conclude that Congress has impermissibly favored debt-collection speech over political and other speech, in violation of the First Amendment,” the Court wrote. “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.”

What’s the takeaway for business owners? Unless you’re a debt collector, the ruling won’t have much impact on you.

What’s the next TCPA fracas to be tamed by SCOTUS? Perhaps they’ll take up the autodialer definition issue, which has been giving everyone agita for years now. You can read our latest about that here, but the tl;dr is simple: Circuit courts are breaking like billiard balls over the definition of a technology central to the TCPA, making it ripe for cert.

We’ll let you know what happens next.