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CREASY COMEBACK?: Three More Heavy-Hitting Briefs Prop-Up Constitutionality Battle in the Sixth Circuit

We reported last week that the ACLU has joined the fray over the TCPA’s constitutionality following AAPC. (We have a BIG podcast interview with those guys scheduled for tomorrow BTW.)

Well three more heavy-hitting briefs were just filed yesterday including one by FACEBOOK– yes, that Facebook–that casts a whole new light on this thing.

Here are a few pieces of Facebook’s introduction:

In AAPC, a splintered Supreme Court majority held that the TCPA’s differential treatment of government-debt-collection speech and other categories of speech was unconstitutional. To fix that problem going forward, the Court invalidated and severed the debt-collection exception to the ATDS restriction, 47 U.S.C. § 227(b)(1)(A)(iii). AAPC made clear that the post-severance ATDS restriction would now apply equally to all callers, including those making ATDS calls to collect government-backed debt. Crucially, however, AAPC was a pre-enforcement facial challenge seeking only prospective relief. So the Court did not have to resolve—and did not resolve—the effect of its constitutional analysis on calls made when the content-based exception was in effect.

The only way to implement AAPC’s equal-treatment mandate is to hold that
the ATDS provision cannot impose liability for any ATDS calls made while the
government-debt exception was in effect.

Now what’s really ground breaking about Facebook’s position is this concept that AAPC’s specific and critical holding was that the First Amendment is an ironing board. (Remember that big piece I wrote on the subject?)

But enforcing the statute in cases involving calls prior to July 6, 2020 is actually inconsistent with the whole “ironing board” thing– speech is not being flatted out, it remains all wrinkly and unwearable. Specifically the statute is enforceable in an uneven and constitutionally-unaccepted way.

While these arguments permeate the appellee’s brief already, Facebook’s brief really puts a fine point on it: Plaintiff’s proposed reading of AAPC really would put the decision at war with itself–exalting a footnote over the central holding of the case itself.

Really, really nice stuff guys. (That Roman Martinez fella is pretty bright.)

Additionally briefs were submitted by ACA, Int’l and CUNA that are also outstanding.

You can read all three here:

Having now digested everything–and without the benefit of Plaintiff’s reply brief just yet–I have to tell you this is going to be a very close call. I love the ACLU’s elegant First Amendment framework and Facebook’s don’t-use-AAPC-against-itself argument is killer.

But will the Sixth Circuit do the right thing? Backing Creasy means wiping out trillions of potential TCPA exposure and allowing four years of potential robocall sins to be wiped away. Then again, not backing Creasy would result in the continued erosion of our cherished First Amendment protections and deprive us even of that crummy ironing board that AAPC gave us. (I mean, I didn’t want it before but now that someone is trying to take it away I changed my mind.)

I can’t wait to find out how this one resolves. Really interesting stuff.

THIS is why I love the TCPA folks.

© Copyright 2022 Squire Patton Boggs (US) LLPNational Law Review, Volume XI, Number 84
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About this Author

Eric Troutman Class Action Attorney
Of Counsel

Eric Troutman is one of the country’s prominent class action defense lawyers and is nationally recognized in Telephone Consumer Protection Act (TCPA) litigation and compliance. He has served as lead defense counsel in more than 70 national TCPA class actions and has litigated nearly a thousand individual TCPA cases in his role as national strategic litigation counsel for major banks and finance companies. He also helps industry participants build TCPA-compliant processes, policies, and systems.

Eric has built a national litigation practice based upon deep experience, rigorous...

213-689-6510
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