In a 6-3 opinion, delivered by Justice Kavanaugh, the Supreme Court affirmed the Fourth Circuit’s ruling in Barr v. American Association of Political Consultants, Inc. and held that the government-debt carve-out from the Telephone Consumer Protection Act’s robocall restrictions can be severed from the rest of the TCPA, leaving the automated calling provisions intact.
The decision begins by stating that “Americans passionately disagree about many things. But they are largely united in their disdain for robocalls.” Thus, the Court was not willing to declare the entire automated calling provision unconstitutional when “tens of millions of consumers would be bombarded every day with nonstop robocalls.”
The Supreme Court considered whether a compelling governmental interest exists to justify the government-debt exception that permitted robocalls made solely to collect a debt owed to or guaranteed by the United States, and whether the TCPA is narrowly tailored the law to achieve that interest.
The Court also considered various content-related legal issues between a lawful robocall that says “pay your government debt” and an unlawful one that says “donate to our political campaign.”
The ruling also rejected plaintiffs’ argument that the entire statute is unconstitutional because Congress has demonstrated its continued interest by retaining a “very broad restriction on robocalls” that “proscribes tens of millions of would-be robocalls that would otherwise occur every day.”
From a practical perspective and although the robocall restriction does not apply to the federal government itself, the Court’s finding that the government-debt exception failed to pass judicial constitutional scrutiny results in the breadth of the TCPA now being expanded to cover more types of speech. It is reasonable to anticipate that TCPA plaintiffs’ lawyers may become even more active. TCPA compliance, including automated calls to mobile phones, is more important now that ever.
This matter should be of interest to telemarketers, including lead generators that generate and/or facilitate the purchase/sale of telemarketing leads. Consult with an experienced FTC defense attorney to discuss the implementation of preventative compliance protocols.
Richard B. Newman is an FTC attorney at Hinch Newman LLP. Follow him on Twitter @FTC defense lawyer.
Informational purposes only. Not legal advice. May be considered attorney advertising.