First Federal Appeals Court Rules Liability Can Still Exist for Robocalls Despite Presence of Unconstitutional Portion of the Statute

September 24, 2021

In Lindenbaum v. Realgy, LLC, No. 20-4252, 2021 WL 4097320, at *1-3 (6th Cir. Sept. 9, 2021), opinion here, the United States Court of Appeals for the Sixth Circuit in a unanimous decision held that the 2020 severance of the unconstitutional 2015 government-debt robocall exception of the Telephone Consumer Protection Act does not exclude liability for other robocalls during that time period.  The issue was whether or not the 2020 severance applied retroactively or prospectively.  In holding that the severance applied retroactively, the Court held that the constitutional portions of the TCPA between 2015 and 2020 were valid and could be enforced despite the concurrent presence of the unconstitutional government debt-exception portion.  In sum, this means there is still potential liability for robocalls made between 2015 and 2020.  Had the Sixth Circuit held the severance applied prospectively, the portion of the TCPA prohibiting robocalls between 2015 and 2020 would have been void.  The Sixth Circuit reversed the District Court, which dismissed the lawsuit alleging two robocalls, and held that “severability is a remedy that operates only prospectively, so the robocall restriction was unconstitutional and therefore ‘void’ for the period the exception was on the books.”  Id. at *1. 

This is the first federal appeals Court to weigh in on this issue.  Prior to this holding, district courts had disagreed on retroactivity, with the majority of district courts holding that the robocall prohibition of the TCPA could be enforced while the unconstitutional portion was part of the statute.  This disagreement derived from footnote 12 in Barr v. Am. Ass’n of Pol. Consultants, Inc., 140 S. Ct. 2335, 2355 (2020) (plurality opinion), which held that “[o]n the other side of the ledger, our decision today does not negate the liability of parties who made robocalls covered by the robocall restriction.” (Kavanaugh, J.)  The Barr Court struck down the government-debt exception to robocalls but severed it from the remainder of the statute.  “Applying the presumption [of severability], the Court invalidates and severs unconstitutional provisions from the remainder of the law rather than razing whole statutes or Acts of Congress.”  Id. at 2351.

 Only three justices endorsed footnote 12, and this left confusion and conflicting opinions among the district courts.  Given that the majority of district courts have held the severance is retroactive and the TCPA robocall prohibition validly applied during 2015-2020, and now an appellate court has agreed, this question appears to be approaching resolution absent a circuit split.  Realgy, LLC may also petition the United States Supreme Court for review.

For any questions regarding this case or any TCPA matter, please contact Charles Zdebski at czdebski@eckertseamans.com or Jeff Brundage at jbrundage@eckertseamans.com or 202-659-6605.

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Authors

Charles A. Zdebski Photo Washington, D.C.

Charles A. Zdebski

Member - Washington, D.C.

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Jeffrey P. Brundage Photo Washington, D.C.

Jeffrey P. Brundage

Member - Washington, D.C.

See full bio