The U.S. Supreme Court, Congress, the Federal Communications Commission and the outcome of the Nov. 3 election are all factors at play in the modernization of the law. Editor’s note: This article is for members only.
9/24/2020 13:30
The Telephone Consumer Protection Act has been on the brink of change for the last several years between pending action from the Federal Communications Commission to define an automatic telephone dialing system (ATDS) and now the U.S. Supreme Court in Facebook Inc. v. Duguid, due for oral arguments Dec. 8.
Leah Dempsey, ACA International’s vice president and senior counsel of federal advocacy, discussed these issues in-depth with Tara Morrissey, deputy chief counsel at the U.S. Chamber of Commerce Litigation Center and Jeffrey R. Johnson, a partner at Jones Day’s Issues and Appeals practice, during the ACA Huddle Sept. 23. A recording of the ACA Huddle for members is available here.
Another significant piece of the TCPA puzzle now is the replacement for Justice Ruth Bader Ginsburg. President Donald Trump has said he will recommend a nominee Saturday, Sept. 26, and it will be a woman. According to CNN, his potential nominees are Barbara Lagoa, a judge appointed by Trump to the 11th U.S. Circuit Court of Appeals last December, and Amy Coney Barrett, a judge in the U.S. Court of Appeals for the 7th Circuit in Chicago.
The nomination and confirmation process to replace Ginsburg could impact the timing of the decision in the Facebook Inc. v. Duguid case.
Senate Majority Leader Mitch McConnell, R-Ky., said he favors voting on the confirmation of Trump’s nominee before the election, as has U.S. Sen. Mitt Romney, R-Utah.
The Republicans need a majority vote to confirm the nominee, which is close with their 53-47 majority in the U.S. Senate. Vice President Mike Pence would vote in the event there is a 50-50 tie.
If there were any delay in the confirmation and it does not occur before Dec. 8, the oral arguments in Facebook Inc. v. Duguid may be delayed.
The arguments would be scheduled for the Supreme Court’s next term if they are not held in December. If they move forward as planned, and unless the case needs to be re-argued, there could be a decision in the case in March or April.
ACA, the U.S. Chamber of Commerce, Business Roundtable, American Bankers Association, American Financial Services Association, Consumer Bankers Association, Edison Electric Institute, Insights Association, Internet Association, Mortgage Bankers Association and National Association of Federally-Insured Credit Unions filed an amici curiae brief Sept. 11 in Facebook Inc. v. Duguid, advocating for legal clarity when using modern methods to communicate with consumers. Read more on the brief here.
Thirteen groups filed briefs supporting Facebook’s appeal in the case, notably with support from the U.S. government of a narrow interpretation of the TCPA and the definition of an ATDS.
The government’s brief from the U.S. Department of Justice argues that the judgment by the U.S. Court of Appeals for the 9th Circuit should be reversed.
Facebook’s appeal in the case could have a significant impact on defining what is considered an ATDS under the TCPA.
Duguid’s response to the briefs is due Oct. 16, and amicus briefs in support of Duguid are due Oct. 23.
The ACA Huddle discussion covered that the briefs in support of Facebook’s appeal and past circuit court decisions are favorable for the accounts receivable management industry, but the decision in Barr v. American Association of Political Consultants on the constitutionality of content restrictions in automated calls to cell phones and a federal exception for calls to collect government debt could present some issues.
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, ACA previously reported.
ACA and its coalition partners are also monitoring the FCC’s activity with the TCPA and mitigating robocalls as it implements components of the Telephone Robocall Abuse Criminal Enforcement and Deterrence Act (TRACED Act) required by Congress. However, it has not made any movement on the definition of an ATDS since the decision in ACA International v. FCC in 2016.
The leadership of the FCC could also impact its decisions on the TCPA next year. If the Democrats take the majority after the Nov. 3 election, Commissioner Jessica Rosenworcel could be appointed chair of the FCC.
The outcome of the oral arguments in Facebook Inc. v. Duguid could also sway the FCC’s actions, according to Dempsey.
Unlike current FCC Chairman Ajit Pai, Rosenworcel has said the 2016 order on the TCPA did not go far enough in restricting robocalls.
“The election is going to play a big role in this. They could go back to the drawing board on the TCPA,” Dempsey said.
Join ACA’s advocacy team for the next ACA Huddle Sept. 30, where Dempsey and Federal Advocacy Director Patrick Russell will discuss potential outcomes of the Nov. 3 election and the impact on the ARM industry.