Another district court, this time the Southern District of California, has waded into the growing debate over whether the Telephone Consumer Protection Act’s (TCPA) autodialer ban was unenforceable in its entirety for a five-year period from 2015–2020. In Barr v. American Association of Political Consultants, 140 S. Ct. 2335 (2020), the Supreme Court held that the government-backed debt exception to the TCPA rendered the statute’s cellphone autodialer ban an unconstitutional restriction on free speech. (You can read more about the Supreme Court’s highly fractured decision in Barr in the August 2020 edition of Predominant Issues.)

After Barr, two district courts concluded that the TCPA’s autodialer provision should be deemed wholly unconstitutional for the entire five-year period (2015–2020) when the government-debt exception was operative. See Creasy v. Charter Commc’ns, Inc., No. CV 20-1199, 2020 WL 5761117 (E.D. La. Sept. 28, 2020); Lindenbaum v. Realgy, LLC, No. 1:19-cv-02862, 2020 WL 6361915 (N.D. Ohio Oct. 29, 2020). Predominant Issues analyzed these orders in the November 2020 issue and noted that this rationale (if followed) could lead to the dismissal of the majority of currently pending TCPA claims.

Last month, a court in the Southern District of California articulated an opposing view:

• In McCurley v. Royal Sea Cruises, Inc., No. 17-cv-00986-BAS-AGS, 2021 WL 288164 (S.D. Cal. Jan. 28, 2021), defendant Royal Sea Cruises moved to dismiss a previously certified TCPA class action arising from calls made between November 2016 and December 2017.
• Royal Sea Cruises argued that the Supreme Court’s decision in Barr rendered the TCPA unconstitutional during this time period (even though the calls at issue did not fall under the government-debt exception ruled invalid in Barr).
• The court disagreed, holding that the unconstitutional government-backed debt exception was severable from the remainder of the TCPA. The court pointed to a footnote in Justice Kavanaugh’s plurality opinion, which directly addressed Royal Sea Cruises’ argument. In that footnote, Justice Kavanaugh wrote that “our decision today does not negate the liability of parties who made robocalls covered by the robocall restriction.” According to the McCurley court, “[t]his case does not involve the collection of government debt; therefore, according to the opinion of Justice Kavanaugh, [Barr] does not negate Defendant’s liability and Defendant’s motion to dismiss must fail.”
• Unlike Creasy and Linden, the court concluded that Justice Kavanaugh’s footnote was not dicta. Instead, the court reasoned that seven justices agreed that the 2015 government-debt amendment should be severed and that the liability of parties making robocalls unrelated to government debts should be unaffected, and so Justice Kavanaugh’s footnote “must be followed.”
• The court further noted that even if the footnote were dicta, the court could not “blandly shrug” it off. The court explained that Justice Kavanaugh’s footnote “signal[ed] the intent of the Supreme Court and what it would hold in future cases and, as such, may not be cavalierly dismissed by a district court.”
• This is the latest decision to weigh in on the enforceability of the TCPA after Barr. We will continue to monitor developments in this area and report on them in future issues of Predominant Issues.
• Read the district court’s decision in McCurley here.