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Overreaction Monday (TCPA Edition): The TCPA is Definitely a Goner Now that SCOTUS is Reviewing the Statute–And All My Other Top Predictions

Ok my phone has been ringing off the hook since SCOTUS granted cert to review the TCPA on Friday. So let me share some thoughts more efficiently here.

Yes the TCPA is likely going away. No that doesn’t mean you should crank up the autodialer.

Below are my key thoughts/predictions on this appeal. Just my opinion, of course. So take them for what they’re worth.

Don’t Believe Any Reports that SCOTUS Will Limit its Review to the Government-Backed Debt Exemption

I’m already reading pieces suggesting that the TCPA appeal will be limited to a review of whether the government-backed debt exemption–added to the TCPA in 2015–is constitutional. With due regard, the folks writing these articles just don’t get it. You have to look deeper.

Yes, the government-backed debt exemption was severed from the statute by the Fourth and Ninth Circuit and yes the government appealed that decisionto the Supremes and yes the government’s position is Orwellian (more on that below) but none of that means the U.S. Supreme Court is going to conduct the same limited (erroneous) review the appellate court did.

As explained below, the limited review conducted by the Circuit Courts of Appeal was itself the mistake that lead to SCOTUS granting cert. There is no way the Supremes granted cert merely to confine themselves to reviewing the exemption–rather they are likely to use the existence of the exemption as the vehicle to review the broader impact of the TCPA’s restrictions on speech. That is, the existence of the content-specific exemption triggers strict scrutiny review of the entire TCPA.

SCOTUS Will Not Make the Same Mistakes the Appellate Courts Did By Expanding An Unconstitutional Restriction on Speech By Striking Down an Exemption

The reason SCOTUS will not limit its review to the constitutionality of the government-backed debt exemption was because it was absurd for the Ninth and Fourth Circuit Courts of Appeal to have done so in this context.

As currently written the TCPA is a content-specific restriction on speech. But it functions differently that most such restrictions have in the past.

Most content-specific restrictions are obvious. They specifically restrict speech regarding one particular category of content that the government disfavors. For instance, a statute might say: “Thou shalt not use social media to discuss socialism” (sorry Bernie).  Such a statute would be unconstitutional and the statute would be struck down as a whole. Indeed, the Ninth Circuit recently struck down a statute that prevented the use of robocalls to speech political messages as unconstitutional. (Keep this one in mind folks.)

But the TCPA reads differently. It applies a vast restriction and then carves out favored speech. Using the socialism example, the TCPA says, in essence: “Thou shalt not use social media, except to discuss something other than socialism.”

Obviously there is no functional difference between these two exemplar statutes–both restrict the use of certain technology to spread ideas regarding certain subject matters. Yet the approach adopted by the Ninth and Fourth Circuit to the TCPA would result in the second statute being upheld with the exemption permitted non-socialism speech struck down. In other words, the Ninth and Fourth Circuit would broaden the restriction, which would now read: “Thou shalt not use social media.” 

Obviously striking down a content specific exemption so as to expand a restriction on speech in a way the legislature did not intend is an absurd and bad idea. Yet that is where we’re living right now. SCOTUS is highly unlikely–IMO–to apply that same analysis.

The Government’s Primary Position in This Appeal is Disappointing and Very Very Scary-  I Don’t Think SCOTUS Will Like it Very Much (And You Shouldn’t Either)

The TCPA allows the government to speak in ways that private speakers are not permitted to speak. Indeed, the TCPA allows the government to use the most effective means of communicating with Americans, while denying that right to private speakers in many cases.

While many statutes preserve to the government certain means of communicating–try putting a siren on the roof of your car and see what happens–virtually all of those statutes look to health, safety or well being to justify the restriction.  The TCPA is different. The TCPA allows the government to do something mundane–collect debts–in a way that is denied to private individuals who have just as much interest in engaging in similar lawful conduct. So this has forced the government to adopt a very strange position in defending the TCPA–that the First Amendment does not apply here at all.

Huh?

In seeking an appeal from Fourth Circuit’s ruling striking down the government-backed debt exemption the government’s primary arguments are: i) the TCPA isn’t really content specific it just favors the government (as if that makes things ok?); and ii) the First Amendment simply does not apply where the government favors its own speech over that of a private speaker (which is kind of a broader re-hash of the first argument.)

These arguments should feel like a smack in the face to every American. How can the freedom of speech mean anything at all if the government feels it can preserve to itself alone the right to speak? Again, there might be some emergency circumstances justifying curtailment of private speech– but to say the government has the outright power to preserve to itself the right to speech effectively and efficiently in every instance and that the First Amendment simply does not apply where such restrictions are made?

That is just Owellian.

The TCPA Isn’t too Big to Fail–But that Doesn’t Mean It Won’t be Swiftly Replaced

Here’s the meat. I predicted on the Unprecedented podcast months ago that SCOTUS would take this issue up on appeal and would strike down the TCPA’s autodialer restrictions in their entirety. I’m certainly not going to back away from that prediction now. The TCPA is going away, at least in some major respects.

The problem– I dont know exactly what parts of the TCPA are going away (and neither does anyone else) and it will almost certainly be replaced by something new.

And I am, obviously, aware that Congress recently doubled down on the TCPA by passing TRACED–preserving the TCPA as the crown jewel of the government’s response to the robocall epidemic.  But Congress is going to have to get a little more creative. Keeping a vague statute on the books that massively impacts speech in an uneven and uncertain way is not tolerable, even in the face of the current robocall epidemic. There’s no way SCOTUS is going to let this statute survive– it must keep the big picture in mind (and yes, there is a picture even bigger than spam phone calls.) The current TCPA is absolutely a goner.

Again, however, that does not mean that folks should feel free to start making spam telemarketing calls to cell phones without consent. Don’t do it!

The clerks up at SCOTUS are way smarter than me and they will likely come up with a way to strike down the TCPA’s restrictions on certain pieces of what the TCPA covers while preserving others. There’s no way to predict exactly what will stand and what will fall, so acting conservatively until we know more is recommended. And even if the TCPA goes away wholesale (or mostly wholesale) Congress will undoubtedly act quickly to replace the TCPA with something else–perhaps a restriction that is actually clear cut and evenly applicable.

I should note that the TCPA can be redrawn to be constitutional. If the TCPA, for instance, is applied only to random or sequential dialing devices the statute surely survives strict scrutiny. If the statute were re-drawn to specifically explain the technology it applies to and all exemptions were removed it may survive intermediate scrutiny–assuming alternate channels of communication are left. I see no chance that Congress allows for unchecked private speech using robocall-esque technology. So don’t get too excited TCPAWorld. Even if/when TCPA Ver. 1 does down, TCPA Ver. 2 won’t be far behind.

Yes, Courts Should Now Stay TCPA Cases Pending SCOTUS Review– But Many Will Refuse to Do So

It seems rather obvious that TCPA cases should be stayed now that the Supreme Court is set to examine the statute. But the same can be said of the FCC’s pending review of the TCPA as part of its public notice proceeding–and we all know courts have not been uniformly staying cases pending the outcome of that ruling. Courts like to keep cases moving. Waiting to see what SCOTUS does or doesn’t do will not be very appealing to a large number of courts–even if a real waste of effort may result as cases plunge forward.

I’ll expect Plaintiff’s lawyers to argue that the SCOTUS review will be limited to the government-backed debt exemption. Hence, the argument goes, the appeal will have no impact outside of debt collection cases . Hopefully the Courts don’t buy it and, for the reasons explained above, that argument is simply inaccurate.

Yes, TCPA Filings Will Drop This Year–But Don’t Get Too Excited. Four Years is a Long Time

It remains to be seen whether the SCOTUS review leads to a sharp decline in new TCPA filings–I will be conducting a straw poll of TCPAWorld bad guys shortly–but it seems likely 2020 will see fewer TCPA filings than 2019.

Again, that should not be perceived as license to run wild with an autodialer–the TCPA has a four year statute of limitations and if (if) I am wrong and SCOTUS does not tinker much with the TCPA, you will really regret any 2020 misdeeds come 2024.

© Copyright 2020 Squire Patton Boggs (US) LLP

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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...

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