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Jul 2020
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July 09, 2020

U.S. Supreme Court Strikes Government Debt Exception to TCPA, But Leaves TCPA Intact for Now

On Monday, July 6, 2020, the United States Supreme Court strengthened the federal law that regulates automated voice calls and text messages, or “robocalls.” The 6-3 decision struck down an exception under the Telephone Consumer Protection Act (TCPA) that allowed collectors of government-backed debt to use robocalls. As a result, the TCPA now prohibits debt collectors from using robocalls to cellphones to collect money owed to the government, including money owed on many student loans and mortgages. In so deciding, the Court declined a request to rule the entire TCPA unconstitutional, leaving the statute in place.
          
The TCPA was enacted in 1991 to combat invasive telemarketing phone calls and automated text messages to Americans. For its first 25 years, the TCPA included exceptions to the general ban against robocalls, such as calls made for emergency purposes and when the recipient has given prior consent to receive the calls. But in 2015, Congress amended the TCPA to add another exception that allowed robocalls to collect debts owed to the Federal Government.
 
The case that was decided on Monday, Barr v. American Association of Political Consultants, Inc., began as a lawsuit challenging this amended version of the TCPA on First Amendment grounds. The challengers to the law argued that the 2015 amendment to the TCPA imposed content-based restrictions on speech in violation of the First Amendment free speech clause. They asked the Court to strike down the entire statute.
 
In Monday’s decision, the Court agreed with the challengers’ First Amendment argument and held that the TCPA violated the First Amendment because it favored speech used to collect government-backed debts over other speech. Speaking for the Court, Justice Kavanaugh explained that, under the TCPA’s government-debt exception, “[a] robocall that says, ‘[p]lease pay your government debt’ is legal. [But] [a] robocall that says, ‘[p]lease donate to our political campaign’ is illegal. That is about as content-based as it gets.” But rather than strike down the entire TCPA, the majority found that the 2015 amendment was “severable” from the rest of the law, leaving the remainder of the TCPA intact.
 
Parties employing robocalls to collect government-backed debt are now subject to the TCPA’s penalties. An individual who receives a robocall or automated text message in violation of the TCPA can sue and recover between $500 and $1,500 per call. Parties using robocalls or automated text messages in violation of the TCPA also risk becoming the subject of a class action lawsuit, and can be sued by a state on behalf of its citizens or by the Federal Communications Commission to collect forfeiture penalties for repeat offenders.
          
Here are a few takeaways from this decision for those who use automated calling or messaging systems:
 
  • The decision does not change how the TCPA is applied in any context other than to robocalls to cellphones made solely to collect government-backed debt.
  • The decision by the Court to keep the remainder of the TCPA intact is a signal that the controversial statute is here to stay.
  • Collectors of government-backed debt now either must discontinue the use of robocalls or acquire a debt-holder’s consent before contacting them via an automated dialing system. If these collectors do not do this, they risk a private or class action lawsuit and significant statutory penalties.
 
We are here to help. Warner Norcross + Judd attorneys are experienced in advising clients on issues related to automated calling, texting and notification systems, as well as defending against TCPA claims. If you would like to discuss this Supreme Court decision or TCPA compliance, or if you are subject to a TCPA claim, please feel free to contact Katherine Pullen, Adam Ratliff or any member of our Cybersecurity & Privacy Litigation Practice Group.

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