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Supreme Court overturns exception for government guaranteed debt; TCPA stands | Womble bond dickinson


The TCPA, enacted in 1991, prohibits making calls or sending text messages using any automatic telephone dialing system or artificial or pre-recorded voice to a cell phone number in the absence of prior express written consent. 47 USC §227 (b) (1) (A) (iii). In 2015, Congress enacted the Bipartisan Budget Act, which included an exception to this TCPA ban for appeals “made only to collect debt owed or guaranteed by the United States.” At the time, it was estimated that the exemption would save the government $ 120 million over 10 years.

In 2016, an association of political consultants and various political organizations sued the attorney general and the FCC in the United States District Court for the Eastern District of North Carolina, claiming that the TCPA automatic dialer ban was a restriction. based on the content of the speech that violated the First Amendment, warranting the greater scrutiny of the court, as the public debt exemption promoted commercial speech, that is to say debt collection discourse, on grassroots political discourse.

The district court agreed with the plaintiffs that a strict review applied to the exemption as it was a form of content discrimination. However, the court found that the exemption was narrowly designed to serve a compelling government interest and therefore had survived scrutiny.

The plaintiffs appealed, and the Fourth Circuit Court of Appeals agreed with the district court that the public debt exemption was content-based and enforced strict scrutiny. This time, however, the court was convinced that the exemption from public debt was an unconstitutional violation of the First Amendment. The Fourth Circuit concluded that the exemption was “fatally sub-inclusive” and, applying traditional principles of dissociation, chose to break the exemption instead of overturning the entire ban on automatic dialers.

A certiorari petition has been filed in the Supreme Court by the Solicitor General on behalf of the United States and the FCC for the Supreme Court to review the Fourth Circuit ruling. The question asked was:

“If the public debt exception to the TCPA robotic call restriction violates the First Amendment, and the appropriate remedy for any constitutional violation is to separate the exception from the rest of the law.” “


First, in determining the examination he would apply for the constitutional analysis, Justice Kavanaugh agreed with the Fourth Circuit that the restriction on robocalls with the public debt exception is content-based and that according to the precedents, it was subject to strict scrutiny. The notice held that the exception is content-based because the law “focuses on the caller talking about a particular topic”.

Under this high standard, the Court held that although the justification declared by the government for the exception for the public debt, which consists in collecting the public debt, is a laudable objective, it “does not sufficiently justify[y] the differentiation between government debt collection speech and other important categories of automated appeal speech, such as political speech, charity fundraising, advocacy, commercial advertising, etc.

After concluding that the 2015 public debt exception created an unconstitutional exception to the autodialer ban, the opinion went on to analyze whether the appropriate remedy was to overturn the 1991 robocall restriction in its entirety. , or rather to invalidate and terminate the exception relating to the 2015 public debt.

First, the opinion recognizes that Supreme Court jurisprudence has developed a strong presumption of severability. This presumption of divisibility “provides a viable solution – a solution that allows courts to avoid the development of judicial policies or de facto judicial legislation to determine how much the rest of a law should be struck down. Applying the general principles of severability to this case, the Supreme Court recognized that the Communications Act contained an express severability clause, which covers Section 227 of Title 47, the provision with the restriction of robocalls and the exception of public debt. Additionally, the public debt exception was enacted in 2015, adding an unconstitutional discriminatory exception to the restriction on robocalls. Therefore, the Court concluded that “the text of the severance clause squarely covers the unconstitutional exception of public debt and requires that we sever it”.

In addition, in the event of separation, the Court must analyze whether the rest of the law is capable of functioning independently and would therefore be fully applicable as law. The opinion confirmed that “the remainder of the robocall restriction operated independently and fully functioned as law for over 20 years before the public debt exception was added in 2015.”

The Court concluded that even if the wording of the divisibility clause of the Communications Act did not apply here, the presumption of divisibility would require the Court to sever the 2015 public debt exception from the rest of the law.

Justice Kavanaugh’s pluralistic view was fully supported by Chief Justice Roberts and Justice Alito. Justice Sotomayor concurred with the judgment. Justices Breyer, Ginsburg and Kagan would have found the government guaranteed debt exception reviewable under interim rather than strict scrutiny and, therefore, were not in violation of the First Amendment. These judges nevertheless agreed that the appropriate remedy in light of the contrary finding of plurality was to sever the exception rather than overturn the TCPA in its entirety. For example, seven of the nine judges agreed that the government guaranteed debt exception did not provide a reason to remove all of the TCPA’s restrictions on automatic dialers. Justices Gorsuch and Thomas, on the other hand, would have concluded that the TCPA violated the First Amendment, refused to remove the government guaranteed debt exception and, therefore, would have rescinded the TCPA’s restrictions on use. automatic dialers.


There was a lot of speculation about what this Supreme Court opinion might mean for the future of the TCPA, with some predicting its imminent demise. Instead, the court adopted a narrowly tailored decision, perhaps ensuring that its ruling did not run counter to the great weight of public opinion that continues to favor the restrictions imposed by the TCPA.

Thus, most TCPA disputes will not be directly impacted by the Court’s opinion. However, businesses that call or text consumers to collect government-guaranteed debts will again need to ensure they get the appropriate level of consent before using an automatic phone numbering system.

While the Supreme Court’s opinion ultimately preserved the status quo, the demand for certiorari in Duguid v. Facebook—Which directly concerns the interpretation of the statutory definition of ATDS — remains unresolved. If granted, the Duguid case has the potential to have much larger implications, especially given the outcome of Barr. Turning to severance clauses, Justice Kavanaugh said that “courts today are focused on the specific legislative text and therefore closely follow the text of severability or non-severability clauses.” If this same approach is applied in the case where the Duguid the application is granted, the presence of several reliable textualists at the Court may have a significant influence on whether the Court[s] closely ”to the statutory text in interpreting the definition of ATDS, or rewrites it as the Ninth Circuit did.

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