Supreme Court Decision in TCPA Case May Have Implications for Future Rules

A Supreme Court decision to hear a challenge by the American Association of Political Consultants questioning a 4th U.S. Circuit Court of Appeals ruling in a key Telephone Consumer Protection Act case could have much bigger implications, TCPA lawyers told us Monday. DOJ also asked the court to hear the case. AAPC sought to have the entire ban thrown out on constitutional grounds, in Barr v. American Association of Political Consultants, docket 19-631. The high court granted cert Friday.

Mark Brennan of Hogan Lovells thinks the case could have big implications for the FCC and companies concerned about enforcement. Other TCPA cases, including ones involving Charter Communications (see 1807020021) and Facebook, raised similar concerns, he said.

“The court’s decision could have far-reaching implications for government restrictions on speech and the technologies used to convey a speaker’s message,” Brennan said. “As with other issues under the TCPA, it would be really nice to have an answer that applies nationwide. This case could also end up being a game changer. If the Supreme Court accepts the respondent’s argument, the court could invalidate the entire TCPA as unconstitutional.”

In 2016, over a partial dissent by then-Commissioner Ajit Pai, the FCC approved an order in response to the 2015 budget law, which legalized robocalls to cellphones for purposes of government debt collection (see 1608110038). “I do not believe the federal government should be bestowing regulatory largesse upon favored industries such as federal debt collectors,” Pai said then. “I hope Congress will soon reverse course and eliminate this special exemption.” The FCC declined to comment now.

“We agree with the Plaintiffs that the debt-collection exemption contravenes the Free Speech Clause,” the 4th Circuit ruled in April: “In agreement with the Government, however, we are satisfied to sever the flawed exemption from the automated call ban.”

The 4th Circuit “recognized that the TCPA’s restriction on speech is content-based and not narrowly tailored to any compelling government interest” and “held that the statute violates the First Amendment,” AAPC said in its appeal of the ruling. “Instead of invalidating the TCPA’s ban on speech, the court took the extraordinary step of rewriting the statute to prohibit more speech. Specifically, the Fourth Circuit purported to fix the constitutional defect by severing the government-debt exception from the statute, while leaving all of the statute’s unconstitutional speech restrictions intact.”

The case has “important First Amendment implications” but “won't likely touch on pressing legal uncertainty problems involving other aspects of the TCPA,” said Free State Foundation Senior Fellow Seth Cooper. FCC rules clarifying the definition of an autodialer under the TCPA or “when a consumer actually consents to robocalls can be accomplished consistent with the First Amendment,” he said. “The commission should clarify that consumers don't become 'autodialers' merely by placing a single call or text from a saved number in their smartphones."

"Our clients are direct participants in the American political process who want to use automatic-call technology to engage in political speech at the core of the First Amendment," emailed Latham & Watkins' Roman Martinez, lead attorney for the AAPC. "It's important that they be able to conduct outreach to the public without triggering the statute's crippling liability scheme."

Cert made sense, since DOJ supported the petition, said Drinker Biddle’s Mark Taticchi. “It presents not only the remedies question, which some of the other cases teed up, but also the merits question on whether the … exception for government debt violates the First Amendment,” he said. “It’s possible it could be a major decision, very sweeping, depending on the court’s view on the remedial question. Is it going to sever the exception from the statute” or say “you can’t separate the exceptions from the whole of the TCPA,” he asked. The court under Chief John Roberts “tends to swing small” on such cases, the lawyer said. “If the Roberts court holds true to form, you would expect to see something that is incremental and possibly lays the groundwork for a broader challenge.”

“The ruling in AAPC will have a huge impact on every American’s First amendment rights,” wrote Eric Troutman of Squire Patton. “If the government can draw hugely expansive restrictions on speech -- using content-specific exemptions to protect only certain favored speech -- our freedom of speech becomes illusory. Yet that is precisely what the TCPA does -- effectuating the single broadest restriction on constitutionally-protected speech in our nation’s history, while simultaneously exempting the government’s own speech from this expansive restriction.”