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.

Nine Amicus Briefs Filed in Support of Attempt to Invalidate TCPA Autodialer Ban

On April 1, 2020, nine amicus briefs were filed in Barr, et al. v. American Association of Political Consultants, et al., currently pending in the Supreme Court, in support of an attempt to invalidate the TCPA’s ban on autodialed calls and texts to cellphones. The ban generally restricts persons or entities from placing automated calls or texts to cell phones without the recipients’ prior express consent. A host of businesses and associations affected by the ban—including Facebook and businesses from the energy, financial services, and tech industries—filed the amicus briefs and argued the TCPA’s blanket ban on autodialed calls and texts to cell phones should be struck down.

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Supreme Court Agrees To Review The Constitutionality of the TCPA

Given how often TCPA cases are filed—and how often they push the envelope of the statute’s scope and the courts’ jurisdiction—it should come as no surprise that the Supreme Court is often asked to bring some sanity to the statute’s enforcement.  Last year was no exception.

For example, a plaintiff petitioned the Supreme Court to reverse the Third Circuit’s decision that facsimiles that merely ask to confirm contact information are not “advertisements” for purposes of the TCPA.  Such facsimiles are advertisements, the plaintiff had argued, because businesses send them “to enhance the accuracy of their database and thus increase their profits.”  That may be so, the Third Circuit held, but that does not mean that they qualify as “advertisements” that promote goods or services.  “After all,” the court observed, “a commercial entity takes almost all of its actions with a profit motivation.”  The Supreme Court declined to review that decision in November.  See Robert W. Mauthe, M.D., P.C. v. Optum, Inc., No. 19-413, 2019 WL 6257433 (U.S. Nov. 25 2019).

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The First Amendment Battleground: SCOTUS Asked to Review Two Ninth Circuit Decisions on the Constitutionality of the TCPA

In the span of fifteen days, TCPA defendants in two separate cases asked the U.S. Supreme Court to review two distinct but interwoven Ninth Circuit decisions on the constitutionality of the TCPA. Specifically, Facebook, Inc. and Charter Communications, Inc. are each asking the Court to rule that the TCPA’s prohibitions on calls made using an ATDS or an artificial or prerecorded voice contravene the First Amendment because they are “content-based” restrictions on speech and that the Ninth Circuit erred in “remedying” the constitutional violation—by severing the TCPA’s exemption for calls made to collect a government debt—rather than invalidating the entire statute. Facebook, Inc. v. Duguid, Petition for Writ of Certiorari, No. 19-511 (Oct. 17, 2019) (“Facebook Petition”); Charter Commc’ns, Inc. v. Gallion, Petition for Writ of Certiorari, No. 19-575 (Nov. 1, 2019) (“Charter Petition”). The two cases represent the most recent escalation of the growing trend in litigation challenging the TCPA’s ability to withstand First Amendment scrutiny.

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As Courts Grapple With The Severability of The Federal Debt-Collection Exemption, SCOTUS Is Asked to Resolve The Issue

The 2016 amendments to the TCPA—which created an exemption for calls that are made “solely to collect a debt owed to or guaranteed by the United States”—have inadvertently reshaped the way that TCPA claims are litigated. While early decisions in Indiana, Alabama, and Florida rejected claims under the FCC’s proposed implementing rules because they never became effective, more recent decisions have focused on whether the exemption, and by extension the entire statute, violates the First Amendment.  The first of those was the Fourth Circuit’s decision in American Association of Political Consultants v. FCC, which was soon followed by the Ninth Circuit and the Southern District of Florida.

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Fourth Circuit Expands Liability by Striking Federal Debt Exemption—But Not Entire TCPA—on First Amendment Grounds

Just as political campaign season begins to heat up, the Fourth Circuit has delivered what must be an unsatisfying victory to a group of political consultants, pollsters, and organizations that had challenged the constitutionality of the TCPA on First Amendment grounds. Am. Ass’n of Political Consultants, Inc. v. FCC, No. 18-1588 (4th Cir. Apr. 24, 2019). Although the challenge had been brought by political groups, the Fourth Circuit’s decision has wide-ranging implications for organizations that collect federal debts. Indeed, the Fourth Circuit may have handed an unexpected gift to the plaintiffs’ bar.   Continue reading   »

Northern District of California Rejects First Amendment Challenge to the TCPA

A federal judge in the Northern District of California recently denied a motion to dismiss a putative class action accusing Facebook of violating the TCPA by sending text messages reminding users about their friends’ birthdays. In so doing, the court rejected Facebook’s First Amendment challenge and found that the TPCA survived strict scrutiny. Brickman v. Facebook, Inc., No. 16-0751, 2017 U.S. Dist. LEXIS 11849 (C.D. Cal. Jan. 27, 2017).  Continue reading   »

Seventh Circuit Rejects Political Speech Challenge to Indiana’s Anti-Robocall Statute

We’ve previously discussed First Amendment challenges to the TCPA and state law counterparts in the context of political speech here, here, and here. Recently, the Seventh Circuit rejected a nonprofit group’s argument that Indiana’s anti-robocall statute violated the First Amendment because it did not exempt robocalls involving political speech. Patriotic Veterans, Inc. v. Zoller, No. 16-2059, 2017 U.S.App. LEXIS 47 (Jan. 3, 2017). Continue reading   »