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Supreme Court Declares TCPA Government-Debt Exception Unconstitutional but Severs Provision to Preserve Remainder of TCPA

On Monday, the United States Supreme Court issued a decision upholding the broad prohibition against autodialed calls to cells phones under the Telephone Consumer Protection Act (TCPA) but ruling that a 2015 exception, which had allowed autodialed calls for the purposes of collecting federally-backed debts such as student loans and mortgage debts, violated the First Amendment.  Thus, the Court held that the exception is invalid and must be severed from the statute.  Under Section 227(b)(1)(A)(iii) of the TCPA, it is unlawful to “make any call (other than a call made for emergency purposes or made with the prior express consent of the called party) using any automatic telephone dialing system or an artificial or prerecorded voice” to a cell phone.  See 47 U.S.C. § 227(b)(1)(A)(iii).  In 2015, Congress passed an exception that permitted autodialed calls “made solely to collect a debt owed to or guaranteed by the United States.”  Id.  A number of political and nonprofit organizations, seeking to make autodialed calls to cell phones for political purposes, filed suit seeking to invalidate Section 227(b)(1)(A)(iii) in its entirety on the basis that the 2015 exception impermissibly favored government debt-collection speech over political and other speech in violation of the First Amendment of the Constitution.  The plaintiffs reasoned that the 2015 exception “undermine[d] the credibility” of the government’s interest in consumer privacy and that if Congress no longer had a genuine interest in consumer privacy, then the underlying 1991 robocall re­striction is no longer justified and is thus unconstitu­tional.

A six-member majority of the Court agreed that the government-debt exception violated the First Amendment.  See Slip Op. at 2, 9.  The Court, however, was not willing to invalidate Section 227(b)(1)(A)(iii) in its entirety based solely on the unconstitutional nature of the government-debt exception.  Rather, applying traditional principles of severability, a seven-member majority of the Court ruled that the exception must be severed from the remainder of the TCPA, finding that the exception “is only a slice of the overall robocall landscape.”  Id. at 10, 20.  Established defenses against TCPA litigation continue to exist, including establishing that a consumer had provided the requisite level of consent to receive a call was provided or that calls were not made using an “automatic telephone dialing system.”

Copyright 2020 K & L GatesNational Law Review, Volume X, Number 189


About this Author

Andrew Glass, KL Gates Law Firm, Financial Litigation Attorney

Mr. Glass is a partner resident in K&L Gates’ Boston office, and a member of the firm's Consumer Financial Services Litigation and Class Action Litigation Defense groups, with extensive experience in complex commercial litigation. Mr. Glass's practice focuses on the defense of federal and state class action litigation brought against consumer financial services, mortgage lending, and consumer credit institutions. These class actions concern challenges under federal statutes, including the Fair Housing Act, Equal Credit Opportunity Act, Fair Credit Reporting Act, Real...

Gregory Blace, KL Gates Law Firm, Class Action Litigation Attorney

Mr. Blase is a partner in the Boston office of K&L Gates where he is a member of the firm's Class Action Litigation Defense group. Mr. Blase has experience in complex commercial litigation, and has represented mortgage lenders, servicers and other financial institutions in class action and individual suits under the Telephone Consumer Protection Act, Fair Credit Reporting Act, Fair Debt Collection Practices Act, Truth in Lending Act, Fair Housing Act, Equal Credit Opportunity Act, Real Estate Settlement Procedures Act, and various state unfair and deceptive practices statutes.

Joseph C. Wylie II, KL Gates Law Firm, Commercial Litigation Attorney

Mr. Wylie’s practice focuses on complex class-action defense and complex commercial litigation with a particular emphasis on consumer and securities matters. He represents clients in defending against a wide range of individual and class-action consumer claims, including consumer fraud actions and claims brought under the Telephone Consumer Protection Act. He also represents investment advisers and mutual fund families in connection with government investigations and investor claims, including claims made under the Investment Company Act. Mr. Wylie also represents...

Molly K. McGinley, KLGates Law Firm, Complex Litigation Attorney

Molly K. McGinley concentrates her practice at K&L Gates in commercial litigation with a focus on complex litigation, including investment company litigation, securities litigation and consumer class action defense. Ms. McGinley is a member of the firm’s Securities and Transactional Litigation Practice and Class Action Litigation Defense Groups. Ms. McGinley has litigated in numerous state and federal jurisdictions, representing a broad range of clients, including small companies, Fortune 500 Companies and investment advisers. She has handled various commercial...

 Hollee M. Boudreau Associate Boston Financial Institutions and Services Litigation

Hollee Watson is an associate in the firm’s Boston office focusing her practice on complex civil litigation in the areas of antitrust, distribution, commercial disputes, and financial services. Ms. Watson’s antitrust and distribution experience includes assisting in the prosecution of federal antitrust claims brought under the Sherman and Clayton Acts and advising clients on grey market suppression and distribution matters. Additionally, Ms. Watson’s financial services and commercial disputes experience includes representing businesses, national banks, mortgage lenders,...