TCPA Constitutionality Review Heads to U.S. Supreme Court


SCOTUS approves petition for appeal of lower court’s ruling that the government-debt exception to the TCPA is unconstitutional.

1/13/2020 12:00

On Friday, the U.S. Supreme Court granted a petition for review of a case that will bring the Telephone Consumer Protection Act’s constitutionality to the forefront of legal discussion.

The case, Barr v. American Association of Political Consultants Inc., stems from the federal government’s request to review the 4th Circuit decision about “whether the government-debt exception to the Telephone Consumer Protection Act of 1991’s automated-call restriction violates the First Amendment, and whether the proper remedy for any constitutional violation is to sever the exception from the remainder of the statute,” according to the SCOTUSblog.

Here is what ACA knows so far:

  • On April 24, 2019, the U.S. Court of Appeals for the 4th Circuit ruled that a 2015 amendment to the TCPA creating an exception to the law for autodialed calls relating to government debt is unconstitutional.
  • The 4th Circuit reasoned that permitting government-backed debt calls “subverts the privacy protections underlying the ban” and that “the impact of the exemption deviates from the purpose of the automated call ban and . . . is an outlier among the other statutory exemptions,” according to the April decision.
  • According to Politico, the government petitioners, U.S. Attorney General William Barr and the Federal Communications Commission, “argued that the court erred in throwing out the debt collector exception but would ask for severability even if its argument is turned aside.” Conversely, the American Association of Political Consultants has framed the issue as whether TCPA’s automated-call prohibition is altogether unconstitutional under the First Amendment and, if so, whether the 4th Circuit erred by striking down the government-debt exception, a decision that effectively resulted in the abridgement of more speech.

SCOTUS Blog contributor Amy Howe reports that the case will likely be scheduled for oral arguments during the Supreme Court’s April argument session.

ACA is analyzing the petition to provide additional insights for members on the implications of the Supreme Court’s pending review.

The ongoing case comes as ACA and the accounts receivable management industry continue to await clarity from the FCC on the definition of an automatic telephone dialing system (ATDS.)

The Pallone-Thune TRACED Act signed into law in December 2019 does not include a directive for the FCC concerning the definition of an ATDS. The U.S. House of Representatives approved a version of the legislation with that directive; however, the House and Senate ultimately could not agree on a directive to the FCC and the entire section was removed in the final package.

Related Content from ACA International:

Federal Court Strikes Down Exemption in TCPA for Government-Backed Debt Calls

ACA Cast: Dissecting the TRACED Act