On July 6, 2020, the Supreme Court issued a highly anticipated—and highly fractured—ruling in Barr v. American Association of Political Consultants. The nine Justices produced four opinions, none of which commanded a majority. But six of the Justices agreed that the TCPA’s government-debt exception violated the First Amendment, and seven agreed that it could be severed from the rest of the TCPA. The result, then, is that the exception was stricken but the restrictions on automated telephone equipment were saved.
Writing for the plurality, Justice Kavanaugh made quick work of the government’s argument that the exception was content-neutral: “A robocall that says, ‘Please pay your government debt’ is legal. A robocall that says, ‘Please donate to our political campaign’ is illegal. That is about as content-based as it gets.” Because the exception was content-based, the plurality applied strict scrutiny—a standard that the government had conceded it could not satisfy.
A court in the Southern District of Florida recently held that the plaintiff in a TCPA suit was not the “called party” under the statute because he received the calls in question only because his cousin rerouted them to the plaintiff’s phone. Thompson v. Portfolio Recovery Associates, LLC, No. 19-62220 (S.D. Fla. Apr. 25, 2020).
In Thompson v. Portfolio Recovery Associates, LLC, Plaintiff Andrew Thompson brought a TCPA suit against PRA—a debt collection company—for seventeen calls made to the Plaintiff’s cousin’s VoIP number that were automatically rerouted by the Plaintiff’s cousin to Plaintiff’s phone and answered by Plaintiff.
On May 6, 2020, the Supreme Court held oral argument via teleconference in Barr v. American Association of Political Consultants. The argument focused on the two questions presented in Barr. First, whether the Telephone Consumer Protection Act’s (TCPA) government debt exception is an unconstitutional content-based restriction on speech. And second, if the government debt exception is unconstitutional, whether the remedy is to sever the exception or instead strike the TCPA’s restrictions on automated telephone equipment in their entirety. A recording of the argument is available below (audio begins at the :30 mark) and a transcript is available on the Supreme Court website.
The Central District of California recently granted summary judgment to the defendant on a TCPA claim in Mendoza v. Allied Interstate LLC, SACV 17-885 JVS (KESx), 2019 WL 5616961 (C.D. Cal. Oct. 22, 2019), finding that the plaintiff had not sufficiently proven revocation of consent to be called about two credit card accounts when he had revoked consent to be called about two other accounts serviced by the same card issuer.