September 20, 2020

Volume X, Number 264

September 18, 2020

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TCPA’s 2015 Government-Debt Collection Exception Struck Down- Now What?

The Supreme Court’s recent decision in Barr v. American Association of Political Consultants held the government-debt exception of the TCPA unconstitutional under the First Amendment’s Free Speech Clause.  This means that going forward, companies that make “debt-collection” calls on behalf of the federal government can only do so with the prior express written consent of the called individuals.

The plaintiffs in this case had argued that the TCPA violated the First Amendment because it was a content-based restriction on speech that did not serve a compelling governmental interest. Their concern related to the TCPA prohibition (in many situations) of unsolicited, automated calls to cell phones. In particular, the 2015 amendment to add a new exception only for unsolicited automated calls related to the collection of debts on behalf of the federal government. The American Association of Political Consultants and other political nonprofit organizations challenged this “government debt” exception on First Amendment grounds, arguing that the 2015 amendment favored speech made for collecting government debt over political and other speech.

By a 6 to 3 vote, the Supreme Court agreed and struck down the government-debt exception and affirmed the ruling of the Fourth Circuit. The Supreme Court concluded that the government could not exempt calls attempting to collect government debts while unsolicited calls to collect private debts remained illegal.  Instead of striking down the entire statute, however, the court held the exception was severable from the rest of the TCPA. Therefore, only the government debt collection exception was thrown out. The rest of the TCPA still stands.

Putting it Into Practice: The most significant outcome of this decision to leave the bulk of the TCPA intact. Although the government debt-collection exception was scrapped, the TCPA’s prohibition on unsolicited automated calls to cell phones still applies to all calls except those made for an “emergency purpose.” Government-debt calls are now treated the same as all other automated calls to cell phones—as they were before the 2015 amendment.

Copyright © 2020, Sheppard Mullin Richter & Hampton LLP.National Law Review, Volume X, Number 216


About this Author

David M. Poell Business Trial Attorney Sheppard Mullin Chicago, IL

David Poell is an associate in the Business Trial Practice Group in the firm’s Chicago office, particularly focusing on the areas of consumer privacy and class action litigation.

Areas of Practice

David represents companies in a variety of class actions, multi-district litigations and other complex commercial litigation matters in state and federal courts. He specializes in defending corporate clients in high-stakes litigation matters involving federal consumer-protection statutes, privacy torts, unfair business practices, false advertising claims and large...