Member Alert: U.S. Supreme Court Issues Ruling in Landmark TCPA Case

ACA International will hold a webinar for members with insights on the Barr v. American Association of Political Consultants opinion Tuesday, July 7.

7/6/2020 8:00 AM

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Member Alert: U.S. Supreme Court Issues Ruling in Landmark TCPA Case

The U.S. Supreme Court issued a landmark opinion Monday on the constitutionality of content restrictions in automated calls to cell phones and a federal exception for calls to collect government debt.

Key takeaways, according to Hogan Lovells LLP:

  • The court ruled 6-3 that the federal-debts exemption is unconstitutional under the First Amendment.The court found that the exemption was a content-based restriction and applied strict scrutiny.  Because the government conceded that the exemption could not survive strict scrutiny, the court invalidated the federal-debts exemption.  
  • The court ruled 7-2 to save the TCPA’s autodialer restriction and sever the federal-debts exemption from the rest of the statute. After invalidating the exemption, the court next determined what the remedy would be.  In other words, could the exemption be severed from the TCPA’s general prohibition against sending autodialed calls without prior express consent?  Drawing from prior decisions, the court found that the federal debts exemption could be severed from the TCPA. The court determined that striking down the TCPA would be administratively unworkable, a dramatic judicial overreach, and contrary to the public interest of combatting unsolicited robocalls. As a result, the rest of the TCPA remains intact.

The opinion by Justice Brett Kavanaugh upholds the Telephone Consumer Protection Act and states “the entire 1991 robocall restriction should not be invalidated, but rather that the 2015 government-debt exception must be invalidated and severed from the remainder of the statute.”

The opinion continues: “As a result, plaintiffs still may not make political robocalls to cell phones, but their speech is now treated equally with debt collection speech.”

The case, Barr v. American Association of Political Consultants, turned on whether the government-debt exception to the TCPA automated-call restriction violates the First Amendment and, if so, whether the proper remedy would be to sever the exception from the remainder of the statute.

ACA International will hold a Hot Topic webinar for members at 11 a.m. CST Tuesday, July 7, "The TCPA Post Barr—Where are We Going and What Will We Find?" with speakers David Kaminski, partner at Carson & Messer, and Skip Kohlmyer, partner at Shepard, Smith, Kohlmyer & Hand, P.A.

The court weighed two key questions in oral arguments in May 2020:

Whether the TCPA’s cell phone robocall ban or its government-debt exception violate the First Amendment’s free speech clause and,

If so, whether the proper remedy is to sever the exception from the rest of the TCPA.

ACA has followed this case closely since the American Association of Political Consultants (AAPC) and three other plaintiffs sued the Federal Communications Commission and U.S. attorney general in the Federal District Court for the Eastern District of North Carolina alleging that after the addition of the government debt exception to the TCPA, it was a violation of the First Amendment. (Read Corporate Counsel Colin Winkler’s background report on the case in the April issue of Collector magazine.)

ACA will provide additional analysis of the decision in the coming days.

Timeline of Debate:

  • In November 2015, the Bipartisan Budget Act of 2015 became law and included an amendment to the TCPA exempting calls to consumers’ cell phones made solely to collect a debt owed to the government, commonly referred to now as the “government debt exception.”
  • In 2016, the American Association of Political Consultants Inc. and three other plaintiffs initiated their case in the U.S. District Court for the Eastern District of North Carolina.
  • In 2017, the plaintiffs as well as the U.S. government filed motions for summary judgment.
  • In March 2018, the court denied the plaintiff’s motion and granted the motion of the U.S. government.
  • The plaintiffs appealed to the 4th Circuit, seeking a second opinion as to the constitutionality of Section 227(b)(I)(A)(iii) of the TCPA after the addition of the government debt exception.
  • In April 2019, the 4th Circuit issued an opinion that agreed with the Eastern District of North Carolina that the TCPA now included a content-based restriction on speech but disagreed about that restriction being narrowly tailored.
  • The federal government, displeased with this outcome, appealed to the Supreme Court, hoping to have the government debt exception blessed by the high court and then reinstated.

Proceedings in the Supreme Court started in September 2019.

For its part, the Supreme Court recognized the importance of the issues in the case—the question of the TCPA’s whole or partial constitutionality after the addition of the government debt exception and the contingent question of severability—and agreed to review the 4th Circuit’s decision.

Members may also be interested to listen to seminars on the case available on the SCOTUSblog. Watch ACA Daily for additional updates and analysis of the case.

For more information on how the ACA Licensing staff can assist with your licensing needs, please contact us at Licensing@acainternational.org  or call (952) 926-6547.


Follow ACA International on Twitter @ACAIntl and @acacollector, Facebook and request to join our LinkedIn group for news and event updates. ACA International members are welcome to submit news items for possible publication to comm@acainternational.org. Visit our publications page for news submission guidelines and subscriptions to ACA Daily, Collector magazine and Pulse.

Advertising is available for companies wishing to promote their products or services. Be sure to visit the ACA Events Calendar on the Education and Training page to view our listing of upcoming CORE Curriculum and Hot Topic seminars featuring critical educational opportunities for your company.


Subscribe to ACA Daily NEWSROOM

Member Alert: U.S. Supreme Court Issues Ruling in Landmark TCPA Case

The U.S. Supreme Court issued a landmark opinion Monday on the constitutionality of content restrictions in automated calls to cell phones and a federal exception for calls to collect government debt.

Key takeaways, according to Hogan Lovells LLP:

  • The court ruled 6-3 that the federal-debts exemption is unconstitutional under the First Amendment.The court found that the exemption was a content-based restriction and applied strict scrutiny.  Because the government conceded that the exemption could not survive strict scrutiny, the court invalidated the federal-debts exemption.  
  • The court ruled 7-2 to save the TCPA’s autodialer restriction and sever the federal-debts exemption from the rest of the statute. After invalidating the exemption, the court next determined what the remedy would be.  In other words, could the exemption be severed from the TCPA’s general prohibition against sending autodialed calls without prior express consent?  Drawing from prior decisions, the court found that the federal debts exemption could be severed from the TCPA. The court determined that striking down the TCPA would be administratively unworkable, a dramatic judicial overreach, and contrary to the public interest of combatting unsolicited robocalls. As a result, the rest of the TCPA remains intact.

The opinion by Justice Brett Kavanaugh upholds the Telephone Consumer Protection Act and states “the entire 1991 robocall restriction should not be invalidated, but rather that the 2015 government-debt exception must be invalidated and severed from the remainder of the statute.”

The opinion continues: “As a result, plaintiffs still may not make political robocalls to cell phones, but their speech is now treated equally with debt collection speech.”

The case, Barr v. American Association of Political Consultants, turned on whether the government-debt exception to the TCPA automated-call restriction violates the First Amendment and, if so, whether the proper remedy would be to sever the exception from the remainder of the statute.

ACA International will hold a Hot Topic webinar for members at 11 a.m. CST Tuesday, July 7, "The TCPA Post Barr—Where are We Going and What Will We Find?" with speakers David Kaminski, partner at Carson & Messer, and Skip Kohlmyer, partner at Shepard, Smith, Kohlmyer & Hand, P.A.

The court weighed two key questions in oral arguments in May 2020:

Whether the TCPA’s cell phone robocall ban or its government-debt exception violate the First Amendment’s free speech clause and,

If so, whether the proper remedy is to sever the exception from the rest of the TCPA.

ACA has followed this case closely since the American Association of Political Consultants (AAPC) and three other plaintiffs sued the Federal Communications Commission and U.S. attorney general in the Federal District Court for the Eastern District of North Carolina alleging that after the addition of the government debt exception to the TCPA, it was a violation of the First Amendment. (Read Corporate Counsel Colin Winkler’s background report on the case in the April issue of Collector magazine.)

ACA will provide additional analysis of the decision in the coming days.

Timeline of Debate:

  • In November 2015, the Bipartisan Budget Act of 2015 became law and included an amendment to the TCPA exempting calls to consumers’ cell phones made solely to collect a debt owed to the government, commonly referred to now as the “government debt exception.”
  • In 2016, the American Association of Political Consultants Inc. and three other plaintiffs initiated their case in the U.S. District Court for the Eastern District of North Carolina.
  • In 2017, the plaintiffs as well as the U.S. government filed motions for summary judgment.
  • In March 2018, the court denied the plaintiff’s motion and granted the motion of the U.S. government.
  • The plaintiffs appealed to the 4th Circuit, seeking a second opinion as to the constitutionality of Section 227(b)(I)(A)(iii) of the TCPA after the addition of the government debt exception.
  • In April 2019, the 4th Circuit issued an opinion that agreed with the Eastern District of North Carolina that the TCPA now included a content-based restriction on speech but disagreed about that restriction being narrowly tailored.
  • The federal government, displeased with this outcome, appealed to the Supreme Court, hoping to have the government debt exception blessed by the high court and then reinstated.

Proceedings in the Supreme Court started in September 2019.

For its part, the Supreme Court recognized the importance of the issues in the case—the question of the TCPA’s whole or partial constitutionality after the addition of the government debt exception and the contingent question of severability—and agreed to review the 4th Circuit’s decision.

Members may also be interested to listen to seminars on the case available on the SCOTUSblog. Watch ACA Daily for additional updates and analysis of the case.

For more information on how the ACA Licensing staff can assist with your licensing needs, please contact us at Licensing@acainternational.org  or call (952) 926-6547.


Follow ACA International on Twitter @ACAIntl and @acacollector, Facebook and request to join our LinkedIn group for news and event updates. ACA International members are welcome to submit news items for possible publication to comm@acainternational.org. Visit our publications page for news submission guidelines and subscriptions to ACA Daily, Collector magazine and Pulse.

Advertising is available for companies wishing to promote their products or services. Be sure to visit the ACA Events Calendar on the Education and Training page to view our listing of upcoming CORE Curriculum and Hot Topic seminars featuring critical educational opportunities for your company.


Subscribe to ACA Daily NEWSROOM

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