U.S. Supreme Court Debates TCPA Government-Debt Exception

The court is now reviewing the TCPA First Amendment case Barr v. American Association of Political Consultants after oral arguments Wednesday.

5/7/2020 8:00 AM

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U.S. Supreme Court Debates TCPA Government-Debt Exception

The U.S. Supreme Court—via teleconference—debated the constitutionality of content restrictions in automated calls to cell phones and a federal exception for calls to collect government debt in an hour-long hearing Wednesday.

The case, Barr v. American Association of Political Consultants, turns on whether the government-debt exception to the Telephone Consumer Protection Act 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.

The issue arose in November 2015, when 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."

ACA International 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.)

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 act 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.

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.

Wednesday, members of the Supreme Court largely focused their debate on whether severing the 2015 TCPA amendment would solve the issue of restricting content of calls.

On behalf of Attorney General William Barr and the FCC, Deputy Solicitor General Malcom Stewart argued that the Supreme Court should reverse the 4th Circuit’s decision that found the government-debt exception to the TCPA to be unconstitutional and severed the exception from the act.

"When we sever provisions, it is because they are illegal," Chief Justice John Roberts said during the opening of the hearing and Stewart’s arguments for the FCC and attorney general.

"There is nothing illegal with the government debt exception," Roberts said.

The debate also came down to consumer privacy, the content of the calls, and the question of whether certain calls are considered "wanted" or "unwanted."

A consumer may not want a call about their student loan debt, for example, but it wouldn’t be unlawful within the government debt exception in the TCPA—yet the same call from a private educational lender would be unlawful. The disparate treatment of these two nearly identical calls appears to be based solely on the content of the call.

"I don’t see how you can escape content-based restriction," said Justice Ruth Bader Ginsburg.

Roman Martinez, the attorney for the AAPC, in fact argued that the government debt exception represents a content-based restriction on speech.

"The underlying restriction is what is unconstitutional," Martinez said.

In rebuttal to the argument from Martinez, Stewart said the issue and the law should be reviewed "more skeptically."

If the Supreme Court finds the government debt exception to be unconstitutional, the other outcome in the case—if the court does not merely sever the exception from the TCPA—could be to invalidate the act altogether and task Congress with revisiting the 1991 law and its requirements for automated calls to cell phones.

ACA has members on both sides of the issue in the case and will continue to watch its progress in the U.S. Supreme Court as it weighs the two key "questions presented" after Wednesday’s argument:

  • 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.

Members may also be interested in listening 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

U.S. Supreme Court Debates TCPA Government-Debt Exception

The U.S. Supreme Court—via teleconference—debated the constitutionality of content restrictions in automated calls to cell phones and a federal exception for calls to collect government debt in an hour-long hearing Wednesday.

The case, Barr v. American Association of Political Consultants, turns on whether the government-debt exception to the Telephone Consumer Protection Act 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.

The issue arose in November 2015, when 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."

ACA International 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.)

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 act 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.

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.

Wednesday, members of the Supreme Court largely focused their debate on whether severing the 2015 TCPA amendment would solve the issue of restricting content of calls.

On behalf of Attorney General William Barr and the FCC, Deputy Solicitor General Malcom Stewart argued that the Supreme Court should reverse the 4th Circuit’s decision that found the government-debt exception to the TCPA to be unconstitutional and severed the exception from the act.

"When we sever provisions, it is because they are illegal," Chief Justice John Roberts said during the opening of the hearing and Stewart’s arguments for the FCC and attorney general.

"There is nothing illegal with the government debt exception," Roberts said.

The debate also came down to consumer privacy, the content of the calls, and the question of whether certain calls are considered "wanted" or "unwanted."

A consumer may not want a call about their student loan debt, for example, but it wouldn’t be unlawful within the government debt exception in the TCPA—yet the same call from a private educational lender would be unlawful. The disparate treatment of these two nearly identical calls appears to be based solely on the content of the call.

"I don’t see how you can escape content-based restriction," said Justice Ruth Bader Ginsburg.

Roman Martinez, the attorney for the AAPC, in fact argued that the government debt exception represents a content-based restriction on speech.

"The underlying restriction is what is unconstitutional," Martinez said.

In rebuttal to the argument from Martinez, Stewart said the issue and the law should be reviewed "more skeptically."

If the Supreme Court finds the government debt exception to be unconstitutional, the other outcome in the case—if the court does not merely sever the exception from the TCPA—could be to invalidate the act altogether and task Congress with revisiting the 1991 law and its requirements for automated calls to cell phones.

ACA has members on both sides of the issue in the case and will continue to watch its progress in the U.S. Supreme Court as it weighs the two key "questions presented" after Wednesday’s argument:

  • 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.

Members may also be interested in listening 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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