Supreme Court Declines to Review Decision to Only Sever Unconstitutional Portion of TCPA
March 24, 2022
On March 21, 2022, the United States Supreme Court declined to revisit a ruling that the unconstitutional government debt exception to the Telephone Consumer Protection Act (TCPA) that existed from 2015 to 2020 did not insulate private entities from liability for unwanted robocalls made to cellphones during that time period.
In 2015, Congress amended the TCPA to allow robocalls if they were made “solely to collect a debt to or guaranteed by the United States.” Political and polling organizations challenged the TCPA carve out as unconstitutional. On July 6, 2020, in Barr v. Am. Ass’n of Pol. Consultants, Inc., 140 S. Ct. 2335, 2348 (2020), in a splintered opinion, a four-person majority of the Supreme Court held the government debt exception unconstitutional because it favored one form of speech over another in violation of the First Amendment. The Supreme Court severed the government debt exception provision but left the remainder of the TCPA in place. In what is notoriously referred to as Footnote 7, the Supreme Court noted its adherence to the presumption of severability and hypothetically questioned how much of a law a Court could invalidate if a Court held a portion of that law unconstitutional.
TCPA defense attorneys pounced and argued that all of the TCPA was unconstitutional between 2015-2020 when the unconstitutional government debt exception existed. Trial courts split on the issue but largely held that entities that made unwanted robocalls between 2015-2020 violated the TCPA despite the unconstitutionality of the government debt exception. In other words, invalidating a portion of the statute did not invalidate the entire law. On September 9, 2021, in Lindenbaum v. Realgy, LLC, 13 F.4th 524, 527 (6th Cir. 2021), the United States Court of Appeals for the Sixth Circuit, the only Appellate Court thus far to analyze the question, held that severance of only the offending portion of the TCPA was appropriate. The Supreme Court has now declined to review that decision. This may have an impact on defenses to TCPA claims based on the unconstitutionality of the government debt exception for calls made between 2015 and 2020.
This TCPA Alert is intended to keep readers current on matters impacting TCPA-related law and is not intended as legal advice. If you have any questions, please contact any member of our TCPA Practice Group, or any other attorney at Eckert Seamans with whom you have been working.