[Co-author: Ambia Harper]

On June 6, 2020, the U.S. Supreme Court issued its decision in Barr v. American Association of Political Consultants, Inc., et al., settling an issue that has lingered over litigation under the Telephone Consumer Protection Act (TCPA) for the past several years. In a badly fractured opinion featuring multiple concurrences and dissents, a majority of the Court held that the TCPA’s federal-debts exemption, which immunizes from liability “calls made solely to collect a debt owed to or guaranteed by the United States,” was a content-based law that violated the First Amendment. Instead of striking down the TCPA’s autodialer restriction in its entirety, as the respondents requested, the Court’s majority severed the federal-debts exemption from the remainder of the TCPA. As a result, the TCPA’s autodialer restriction lives to see another day.

Procedural History

The TCPA was enacted in 1991 to restrict telemarketing activities and the use of automated dialing systems and artificial or prerecorded messages, often referred to as robocalls. As originally enacted, the TCPA prohibited almost all robocalls to cell phones placed without prior express consent. The 2015 Bipartisan Budget Act, however, exempted from the prior express consent requirement calls made solely for the purpose of collecting a debt owed to or guaranteed by the United States (the federal-debts exemption). In 2016, American Association of Political Consultants, Inc. (AAPC) filed a lawsuit alleging that, in light of the new federal-debts exemption, the TCPA’s continuing ban on all other calls to cell phones violated the First Amendment. AAPC sought a declaratory judgment that the entire provision banning calls to cell phones was an impermissible content-based restriction on speech and an injunction preventing enforcement.

In 2018, a North Carolina federal court denied AAPC’s request for declaratory and injunctive relief. The district court agreed that the cell phone call ban with the federal-debts exemption was a content-based speech restriction subject to strict scrutiny, but it determined that the provision survived strict scrutiny because of the government’s compelling interest in collecting debt. The Fourth Circuit vacated the district court’s judgment in 2019, concluding that the cell phone ban as amended to include the federal-debts exemption could not survive strict scrutiny. Rather than invalidating the entire cell phone call ban as AAPC sought, the Fourth Circuit concluded that the federal-debts exemption was severable from the rest of the provision.

The Decision

In a fractured decision, the Court struck down (by a 6-3 vote) the federal-debts exemption under the First Amendment, holding that the exemption was a content-based restriction on speech that could not survive strict scrutiny. The Court also determined (by a 7-2 vote) that severing the federal-debts exemption from the remainder of the TCPA was the appropriate remedy.

In the controlling plurality opinion, Justice Kavanaugh concluded that the law was a content-based speech restriction because it “favors speech made for collecting government debt over political and other speech.” He also agreed with the government’s concession that “it ha[d] not sufficiently justified the differentiation between government-debt collection speech and other important categories of robocall speech.” On the issue of severability, Justice Kavanaugh first noted that AAPC’s broader initial argument for holding the entire robocall restriction unconstitutional was unpersuasive. Then, applying general severability principles, he concluded that the Communications Act’s severability clause and the presumption of severability required severing the federal-debts exemption.

Key Takeaways

As Many Questions As Answers. The Court’s opinion raises new issues that could factor into future TCPA litigation, including:

• How might courts address content-based speech restrictions that differentiate between speakers, as opposed to the restrictions at issue in AAPC, which the Court found were message-based?
• What justifications for content-based speech restrictions are sufficient to satisfy strict scrutiny?

Grandfathered Relief for Federal Debt Collectors. The Court specifically clarified that “no one should be penalized or held liable for making robocalls to collect government debt after the effective date of the 2015 government-debt exception and before the entry of final judgment by the District Court on remand in this case, or such date that the lower courts determine is appropriate.”

Autodialer Issue Remains Unresolved. The Court did not weigh in on a critical unsettled TCPA issue: what constitutes an “automatic telephone dialing system” under the statute?

Next Steps

The Court may have another TCPA case on the horizon: Facebook v. Duguid, on petition for certiorari before the Supreme Court from the Ninth Circuit, raises the question of what types of technology qualify as an “automatic telephone dialing system” under the TCPA.

In the meantime, companies should continue to ensure that their activities comply with the TCPA’s requirements, and companies that previously benefitted from the federal-debts exemption will need to develop new procedures to ensure compliance.

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