In the aftermath of Barr v. American Association of Political Consultants, Inc.—the Supreme Court decision from July that held the TCPA’s government-debt exception to be an unconstitutional content-based restriction on speech—the country’s district courts cannot agree on whether they may adjudicate TCPA claims alleging conduct that transpired during the life of the exception (i.e., during the period from November 2, 2015 to July 6, 2020). Click here to see our collection of posts on this issue, which we have been following closely. Continue reading
The TRACED Act’s December 30, 2020 deadline was not the end of the FCC’s recent series of actions to bring more clarity to certain forms of TCPA exemptions. Most recently, on January 15, 2021, the FCC issued a Declaratory Ruling “clarify[ing] that a call to a residential telephone line seeking an individual’s participation in a clinical pharmaceutical trial is not subject to the TCPA’s restrictions on prerecorded calls.” Instead, the FCC stated that these calls are eligible for exemption from the TCPA’s prior express written consent requirement as other calls to a residence that do not constitute telemarketing.
As we have reported on here, here, here, and here, a growing number of district courts are issuing opinions addressing whether they have subject matter jurisdiction over TCPA claims alleging robocall violations that occurred when the government debt exception invalidated by Barr v. APPC, 140 S. Ct. 2335 (2020), was part of the statute. The Eastern District of California recently added to this line of cases, joining courts that have held that “the TCPA remains enforceable, at least against non-government debt collectors, as to calls made between November 2015 and July 6, 2020.” See Stoutt v Travis Credit Union, No. 2:20-cv-01280, 2021 WL 99636, at *3 (E.D. Cal. Jan. 12, 2021).
On January 6, 2021, the District of Maryland dismissed a TCPA claim (and a derivative claim under Maryland’s MDTPCA) against Discount Power, Inc. (“Discount”). See Worsham v. Discount Power, Inc., No. 20-0008, 2021 WL 50922 (D. Md. Jan. 6, 2021). The decision is a helpful reminder that a number’s purpose can be a critical component of a TCPA claim and that defendants should therefore develop that fact during preliminary investigation and, if necessary, during formal discovery.
The Supreme Court recently declined to review the Seventh Circuit’s ruling in Mussat v. IQVIA, Inc., 953 F.3d 441 (7th Cir. 2020), which found that the logic of Bristol-Myers Squibb Co. v. Superior Court of California, 582 US (2017) did not apply to class actions and therefore that a federal court in Illinois somehow had specific personal jurisdiction over the individual claims of unnamed class members who had no connection whatsoever to that forum state.
Some welcome the New Year with new goals and new plans while others – the FCC, in particular, welcomes the New Year by wrapping up TCPA rulemakings and issuing other rulings. As expected, a number of TRACED Act items were included in orders issued in late December 2020. As we previewed, the FCC amended nine existing TCPA exemptions, imposing additional restrictions on pre-recorded/artificial voice calls placed to residential lines even for informational calling, and adopted new redress requirements on and safe harbor protections for carriers engaging in network-based call blocking. The FCC also denied two petitions for declaratory rulings, clarifying that “soundboard callers use a prerecorded voice to deliver a message” and that as a result, these calls made using soundboards are subject to TCPA restrictions. In light of these changes, we encourage business callers to carefully assess how they affect any existing calling protocols and compliance practices.
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.