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Category - "Exemptions"

California District Court Criticizes Creasy, Concluding Barr Decision does not Deprive it of Jurisdiction

A district court from the Central District of California cast its lot against the growing argument that federal courts lack jurisdiction over TCPA claims based on conduct that occurred when the government debt exception was part of the statute. See Shen v. Tricolor California Auto Group, LLC, No. 20-7419, 2020 WL 7705888, at *1 (C.D. Cal. Dec. 17, 2020).

As our regular readers know, the government debt exception—a relatively new addition to the TCPA—was recently severed from the statute by the Supreme Court’s decision in Barr v. AAPC. Since, several federal district courts have questioned whether they may enforce the statute as to claims based on conduct that allegedly occurred while the exception was part of the statute, i.e. from November 2, 2015 through July 6, 2020. Most notably, the Eastern District of Louisiana concluded in Creasy v. Charter Communications that the Barr decision held that the TCPA was unconstitutional in its entirety during the pendency of the exception, that courts lack authority to enforce a constitutional statute, and that courts therefore cannot hear claims based on conduct during that period.

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Is Florida Queasy About Creasy?

On the same day last week, two different judges in the Middle District of Florida issued divergent decisions regarding the effect of the Supreme Court’s holding in Barr v. AAPC, 140 S. Ct. 2335, 2347 (2020). One followed the Eastern District of Louisiana’s groundbreaking decision in Creasy v. Charter Communications and the Northern District of Ohio’s subsequent decision Lindenbaum v. Realgy. But the other is notable because it broke with those decisions, marking the first time a court has rejected them. Compare Hussain v. Sullivan Buick Cadillac-GMC Truck, No. 20-0038, 2020 WL 7346536 (M.D. Fla. Dec. 11, 2020) (following Creasy) with Abramson v. Fed. Ins. Co., No. 19-2523, 2020 WL 7318953 (M.D. Fla. Dec. 11, 2020) (rejecting Creasy).

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Spooktacular Severability Ruling Raises Barr From The Dead, Buries TCPA Claims Arising Between November 2015 and July 2020

A few weeks ago, the Eastern District of Louisiana held that courts cannot impose liability under Sections 227(b)(1)(A) or (b)(1)(B) of the TCPA for calls that were made before the Supreme Court cured those provisions’ unconstitutionality by severing their debt collection exemptions. The first-of-its-kind decision reasoned that courts cannot enforce unconstitutional laws, and severing the statute applied prospectively, not retroactively. Plaintiffs privately panicked but publicly proclaimed that the Creasy decision was “odd” and would not be followed.

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First-of-its-Kind Decision Rejects Liability for Calls Made Before Supreme Court Cured TCPA’s Unconstitutionality by Invalidating Debt-Collection Exception

Charter Communications may have just helped literally thousands of TCPA defendants snatch victory from the jaws of defeat.

As our regular readers know, the Supreme Court recently held in Barr v. AAPC that a recent addition to the TCPA—specifically, an exemption for calls to collect federal debts—was a content-based regulation of speech that violated the First Amendment. It then severed that exception from the rest of the statute, and in doing so dashed the hopes of defendants that had advocated for invalidating all of the statute’s restrictions on automated telephone equipment.

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FCC Proposed Rulemaking Presents an Opportunity to Reshape Some Existing TCPA Exemptions

Over the years, one of the biggest challenges many businesses face when assessing TCPA risks posed by a new calling or texting campaign has been determining whether the proposed use case can defensibly rely on one of the exemptions adopted by the Federal Communications Commission (FCC). That is because the FCC has repeatedly cautioned that any exemptions it adopts apply only to the specific set of facts considered by the agency. Sometimes the jigsaw puzzle pieces align, but other times they do not perfectly fit together, making exemptions less useful than they might otherwise be.

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The FCC Clarifies that Certain Communications to COVID-19 Patients Fall with TCPA’s “Emergency Purposes” Safe Harbor

In a Public Notice issued July 28, 2020, the FCC confirmed that the TCPA’s safe harbor for calls or text messages made for “emergency purposes” applies to calls and text messages made by or on behalf of health care entities to communicate with individuals who have tested positive for COVID-19 to provide them with information regarding donating their plasma after recovery. As a result, in the FCC’s view, such calls or text messages during the ongoing pandemic do not require prior express consent to be lawful. Continue reading “The FCC Clarifies that Certain Communications to COVID-19 Patients Fall with TCPA’s “Emergency Purposes” Safe Harbor”

Supreme Court Strikes Government-Debt Exception But Saves Other Restrictions on Automated Telephone Equipment

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.

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Supreme Court Holds Oral Argument via Teleconference in Barr v. American Association of Political Consultants

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.

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Supreme Court to Hold Oral Argument via Teleconference in Barr v. American Association of Political Consultants

The Supreme Court announced today that it will hold oral argument via teleconference for Barr v. American Association of Political Consultants and a number of other cases that have come before it this term. The Barr case poses two questions about the TCPA: First, whether the TCPA’s exception for calls regarding “debt owed to or guaranteed by” the United States is an unconstitutional content-based restriction on speech; and second, if the government-debt exception is indeed unconstitutional, whether the proper remedy is simply to sever that exception, or instead to strike the statute’s restrictions on automated telephone equipment in their entirety. The Court’s willingness to conduct remote oral argument for Barr indicates a desire to decide the case before the end of the current term.

Oral argument for Barr is to be held at some point in May, depending on the availability of counsel. The Court plans to broadcast a live audio feed of the oral argument.