February 11, 2020 Practice Points

TCPA Takes Center Stage at Supreme Court

The Court attempts to bring sanity to the statute.

By Michael P. Daly and Mark D. Taticchi

Given how often Telephone Consumer Protection Act (TCPA) cases are filed—and how often they push the limits of the statute’s scope—it should come as no surprise that the U.S. Supreme Court is often asked to bring sanity to the statute. The past year was no exception. The difference, though, is that this year it chose to bite.

Although the Supreme Court rejected a number of TCPA-related petitions this term, it finally granted one at its January 10, 2020, conference: Barr v. American Association of Political Consultants, Inc., No. 19-631. That petition, filed by the federal government, seeks review of the Fourth Circuit’s decision that the TCPA’s exemption for calls made to collect debt held by the federal government is a content-based regulation of speech that violates the First Amendment. The Fourth Circuit further held that the proper remedy for the constitutional violation was to sever the exemption (which was added to the statute in 2015) from the rest of the TCPA, thereby leaving in place the statute’s other restrictions on automated telephone equipment. See 47 U.S.C. § 227(b).

The government’s petition is not the only one that is before the Court on these issues. Two related petitions were recently filed by Facebook and Charter Communications. Both companies took similar paths to the high court. Both were sued in federal court in California. Both argued that the statute’s restrictions on automated telephone equipment are content-based regulations that do not withstand strict scrutiny. And both ended up before the Ninth Circuit, which (like the Fourth Circuit) held that the federal-debt-collection exemption is a content-based regulation of speech that does not survive strict scrutiny, and (again like the Fourth Circuit) severed the exemption rather than scuttle the rest of the statute. Both then filed petitions that made similar but slightly different arguments: Whereas Charter’s petition focuses on whether the content-based restrictions can be severed, Facebook’s petition also argues that the statute is unconstitutionally overbroad because its definition of an “automatic telephone dialing system”—at least as it has been interpreted by the Ninth Circuit—is virtually limitless in scope.

Now that the statute’s constitutionality is squarely before the Court, plaintiffs and their proxies will no doubt argue in favor of its preservation, given (among other reasons) how lucrative TCPA litigation has proved for at least some segments of the plaintiffs’ bar. Callers and their allies, by contrast, will seek a broad holding of unconstitutionality and will argue (among other things) that simply striking the exemption would have the perverse effect of prohibiting more speech rather than less. They also likely will point out that the statute and its regulations are riddled with other regulations that turn on the content of the message being communicated (e.g., whether a call concerns the security of financial information, the confirmation of a delivery, the healthcare of the recipient, or the goods or services of the caller).

Because Charter’s petition was not resolved at the Court’s January conferences and that Facebook’s petition will not reach the justices’ desks in time for it to be heard this term, it seems likely that the Court will simply hold those petitions pending its decision the Barr v. AAPC case. In the meantime, the parties and their amici on both sides have almost certainly commenced work on their briefs, which will be due in the coming weeks. The case will be argued during the Court’s April sitting and will be decided by the end of June.

Michael P. Daly is a partner and Mark D. Taticchi is an associate at Drinker Biddle & Reath LLP in Philadelphia, Pennsylvania.


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