In July 2020, the Supreme Court in Barr v. American Ass’n of Political Consultants, No. 19-631, upheld the Telephone Consumer Protection Act’s (“TCPA”) ban on telephone solicitation through the use of automatic telephone dialing systems, but in applying a strict scrutiny analysis, the Supreme Court found that the government debt collection exemption was an unconstitutional infringement of free speech under the First Amendment.
Barr v. American Ass’n of Political Consultants was an appeal from the Fourth Circuit. Specifically, the American Association of Political Consultants (“AAPC”) sought to challenge the government debt collection exemption of the TCPA, which was enacted by Congress in 2015. The exemption allowed for the use of autodialer technology if “made solely to collect a debt owed to or guaranteed by the United States.” See Bipartisan Budget Act of 2015, Pub. L. No. 114-74, § 301(a), 129 Stat. 584, 588 (2015) (amending 47 U.S.C. § 227(b)(1)(A)(iii)) (the “federal exemption”). AAPC argued that in enacting the federal exemption, the TCPA became a content-based restriction on free speech in violation of the First Amendment, and thus, the TCPA should be eliminated in its entirety. AAPC asserted that striking down the TCPA would allow it to make automated calls to further its mission and solicit business without the risk of litigation.
The Fourth Circuit addressed two questions: (1) whether the federal exemption was an unconstitutional content-based restriction on free speech under the First Amendment; and (2) if the exemption was found to be unconstitutional, what should the proper remedy be? In applying a strict-scrutiny analysis, the Fourth Circuit found that the federal exemption was unconstitutional and the exemption was severable from the remainder of the TCPA.
The issue on appeal to the Supreme Court was whether the federal exemption is in fact an unconstitutional content-based restriction on free speech and whether severance of the exemption is the proper remedy. Before the Supreme Court’s decision, many attorneys and legal commentators opined that the Supreme Court would opt to eliminate the TCPA all together, which would have hindered class action litigation in the telecommunications realm.
However, the Supreme Court ultimately concluded that the federal exemption was unconstitutional, but the proper remedy was to sever the exemption rather than eliminate the TCPA altogether. In drafting the opinion, Judge Kavanaugh acknowledged that “Americans passionately disagree about many things. But they are largely united in their disdain for robocalls.” Of significance, the 6-3 majority agreed with the Fourth Circuit and found that the appropriate remedy was to sever the government debt collection exemption rather than striking down the TCPA all together.
Although the AAPC did not receive any tangible benefit through its case as though it remains restricted by the TCPA, the Supreme Court’s decision levels the playing field between the federal government and corporate America’s ability to utilize robocalls to enhance their business practices and overall strategies. Further, in light of the majority’s remedy of striking the exemption rather than the statute in its entirety, class action plaintiffs will continue to be able to use the TCPA as a tool to seek recovery for the notorious unwanted calls. As such, businesses should be aware of the implications and potential exposure that they may face for even inadvertent violations of the TCPA.