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.

Many quickly turned their attention to Facebook v. Duguid, which the Supreme Court agreed to hear just a few days later. And understandably so, as the Facebook case has the potential to provide much-needed and long-overdue clarity on the interpretation of the TCPA’s autodialer definition.

But the Barr decision all but ignored the practical consequence of its holding—that is, can there be liability for calls that were made before the Supreme Court remedied the statute’s constitutional defect?  Put differently, can there be liability for calls made between November 2, 2015 (when the exception took effect and the statute become unconstitutional) and July 6, 2020 (when the exception was severed and the statute became constitutional again)?

Incredibly, only two of the Court’s four opinions even acknowledged that this might be an issue.  Making matters worse, neither of them agreed with the other or commanded a majority of the Court.  Justice Kavanaugh relegated the issue to a footnote. In his view, while “no one should be penalized or held liable” for trying to collect a federal debt while the debt-collection exception was on the books, the Court could “not negate the liability” that would arise from other kinds of calls that were “covered by the robocall restriction.” But the irony of that was not lost on Justice Gorsuch. “A holding that shields only government-debt collection callers from past liability under an admittedly unconstitutional law would,” he wrote, “wind up endorsing the very same kind of content discrimination we say we are seeking to eliminate.”

Enter Judge Feldman of the Eastern District of Louisiana. In what appears to be the first decision of its kind, Judge Feldman found that there can be no liability for calls that were made while the TCPA was unconstitutional—i.e., between the time the debt-collection exception took effect and was later stricken.

Judge Feldman began by reviewing the various opinions in Barr and finding nothing on this point other than “the few lines of nonbinding dicta” that are quoted above. “[C]onfronted with genuine issue of first impression, and with little more to guide it than passing Supreme Court dicta of no precedential force,” he then concluded that “Justice Gorsuch’s is the better argument as a matter of law and logic.”

Judge Feldman cited several decisions that stand for the “timeless principle” that “[a]n unconstitutional law is void, and is as no law.” He then reasoned that, “in the years in which § 227(b)(1)(A)(iii) permitted robocalls of one category of content (government-debt collection) while prohibiting robocalls of all other categories of content, the entirety of the provision was, indeed, unconstitutional.” Because the plaintiff was asking the court to enforce “the unconstitutional amended version of § 227(b)(1)(A)(iii),” and because courts “may not enforce” such laws, Judge Feldman found that the Barr decision necessarily “compels dismissal” of such claims.

It remains to be seen whether the plaintiffs will try to take an appeal from this ruling, or whether other courts will follow Judge Feldman’s lead. For the time being, however, TCPA defendants now have another arrow in their quivers.  And that is always a welcome development.