US Supreme Court Finds First Amendment Problems with TCPA Exception

Today, the United States Supreme Court issued its decision in Barr v. American Association of Political Consultants, Inc. concluding that an exception to the Telephone Consumer Protection Act (TCPA) constitutes a content-based speech restriction and violates the First Amendment. 

Congress enacted the TCPA in 1991 to combat unwanted robocalls.  The law prohibits phone calls generated by an “automatic telephone dialing system” without consent, except for emergency purposes.  In 2015, Congress added another exemption for calls made for the purpose of collecting a debt owed to or guaranteed by the federal government (“government-backed debt exemption”).   The following year, the American Association of Political Consultants, Inc. (“AAPC”) challenged the government-back debt exemption as a content-based speech restriction that violates the First Amendment and sought to have the TCPA tossed in its entirety. 

There are lots of good reasons to get rid of the TCPA.  First, the law is nearly 30 years old and its language makes little sense in light of current technologies leaving courts to perform interpretation gymnastics to apply the law.  Second, the TCPA does not seem to have any real impact other than lining the pockets of plaintiffs’ class action lawyers who are getting large payouts while individual class members collect miniscule amounts.  But none of these issues were before the Court. 

The offending government-back loan exemption that was before the Court was not enough to throw out the TCPA all together.  Instead, the Court severed the government-back debt exemption and left the TCPA otherwise intact.

Six members of the Court agreed that, with its government-back debt exemption, Congress “impermissibly favored debt-collection speech over political and other speech.”  And seven members of the Court agreed that it was most appropriate to sever the offending exemption as opposed to tossing the statute all together.  Justice Brett Kavanaugh wrote the opinion for the majority.

For the AAPC, this is an empty victory.  Political robocalls (AAPC’s primary concern) are still prohibited because the TCPA remains intact.  According to the Court, such speech “is now treated equally with debt-collection speech.”  For the rest of us, this decision leaves intact an outdated statute that does little to protect privacy or stop pesky robocalls.  Admittedly, the issues in Barr v. AAPC may not have been ideal for pursuing the invalidation of the TCPA.  And while there are a few circuit splits on TCPA issues that are ripe for US Supreme Court consideration, the best result would be for Congress to revisit and revamp the TCPA to bring it into the 21st Century.