Earlier today, the United States Supreme Court granted the petition for certiorari in which Facebook had asked the Court to resolve the growing circuit split regarding the definition of an ATDS. The Court limited its review to the second question presented, namely “whether the definition of ATDS in the TCPA encompasses any device that can ‘store’ and ‘automatically dial’ telephone numbers, even if the device does not ‘us[e] a random or sequential number generator.’” This comes hot on the heels of the Court’s ruling earlier this week on the constitutionality and severability of the government-debt exception to the statute’s 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.
This morning, the United States Supreme Court issued its highly anticipated ruling in Barr v. American Association of Political Consultants. The decisions are fractured, but a majority of the Justices coalesced around finding that the federal debt-collection exception (1) violated the First Amendment but (2) could be severed from the statute such that the restrictions on automated telephone equipment remain in place. Notably, however, Justice Gorsuch filed and Justice Thomas joined a separate opinion that poked holes in the remedy—which is to say, the absence of a remedy—and urged the Court to revisit its approach to severability in general. We are reviewing the various opinions and will report back with a more thorough analysis shortly.
As readers of this blog know, a robust Circuit split has developed regarding the meaning of an ATDS. The Second and Ninth Circuits have taken one approach, while the Third, Seventh, and Eleventh Circuits have taken another. While we await Supreme Court guidance, lower courts continue to grapple with the ATDS issue. In Eisenband v. Pine Belt Automotive, Inc., No. 17-8549 (FLW) (LHG), 2020 WL 1486045 (D.N.J. Mar. 27, 2020), the District of New Jersey analyzed the definition of an ATDS and concluded that equipment that dials numbers from a manually prepared list does not constitute an ATDS.
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 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.
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.
TCPA Blog’s Mike Daly was quoted in a Law360 article analyzing the potential impact of the Supreme Court’s decision to review the constitutionality of the TCPA’s restrictions on the use of automatic telephone equipment.
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).
Does a “call placed in violation of the Telephone Consumer Protection Act, without any allegation or showing of injury—even that plaintiffs heard the phone ring—suffice to establish concrete injury for purposes of Article III [of the Constitution?]” Recently, Dish Network petitioned the Supreme Court to resolve this question and overturn a verdict rendered by a North Carolina federal jury that was later trebled to $61 million and upheld by the United States Court of Appeals for the Fourth Circuit. Briefing on Dish Network’s petition is now complete and we now await the Court’s decision on whether it will review the case.