YES, CREASY IS STILL DEAD: TCPA Decision Answers Question Everyone Has Stopped Asking
or a brief period in late 2020 and moving into early 2021 it looked like the TCPA was going to be completely unenforceable prior to July 6, 2020.
The rationale–arising from a decision in a case called Creasy–was the the Supreme Court had found in AAPC the TCPA was unenforceable owing to the content-specific government-backed debt exemption added by Congress in 2015. Although AAPC severed the exemption, that still left the tricky issue of whether the TCPA could be enforced during timeframes that it was unconstitutionally content specific.
While the answer may seem like an obvious “no”–courts can’t enforce statutes that can’t be constitutionally enforced–courts did it anyway, mostly reasoning that the government-backed debt exemption was void from the start and never existed (but don’t tell that to the courts that continued enforcing it anyway.)
Indeed, so many courts piled on the “let’s enforce the statute anyway” bandwagon that defendants stopped bringing the argument–it is pretty much a waste of money. And by late 2021, the Creasy phase had all but died out.
But one Defendant, apparently, had a little money to burn and did so in Shoemaker v. Zeitlin, et al., 2023 WL 3826460 (M.D. Pa. June 5, 2023) arguing that the Court should dismiss a TCPA claim under Creasy. Quite the throwback.
The Court in Shoemaker gave the argument due consideration before ultimately rejecting it recognizing the “strong majority” of courts have held Creasy lights the path of the wrong tunnel:
We find the reasoning laid out by the Sixth Circuit, Judge Bibas, and other courts rejecting defendants’ arguments to be persuasive. We conclude Section 227(b)(1)(A)(iii) was enforceable throughout the period relevant to the matter sub judice and creates no conflict with the First Amendment. We will deny defendants’ motion to dismiss claims and to strike class allegations related to calls initiated prior to July 6, 2020.
So there you go. Creasy is still dead. In case anyone was wondering–and no one was.
Of course, there is still a much MUCH larger issue raised by AAPC. The TCPA is unenforceable TODAY due to myriad content-specific exemptions created by the FCC that live on and have not been–and perhaps, cannot be–severed. Under AAPC these exemptions render the TCPA’s restrictions content-specific–meaning the statute must survive strict scrutiny to be enforceable, and it does not.
Someday we will get a ruling on that issue. For now, however, the beat goes on…