Friday, January 10, 2020
The United States Supreme Court granted certiorari in Barr v. Political Consultants involving a First Amendment challenge to a provision of the Telephone Consumer Protection Act of 1991 (the “TCPA”), 47 U.S.C. § 227(b)(1)(A).
The federal law prohibits calls to cell phones by use of an automated dialing system or an artificial or prerecorded voice, subject to three statutory exemptions including one added in 2015 for automated calls that relate to the collection of debts owed to or guaranteed by the federal government.
The challengers, political consultants and similar entities, argued that this exemption violated the First Amendment as a content regulation that could not survive strict scrutiny and further that the exemption could not be severed from the TCPA.
The district judge held that the TCPA exemption was content-based but satisfied strict scrutiny review. The Fourth Circuit's opinion agreed that the exemption was content-based, applying the rubric from Reed v. Town of Gilbert (2015). Like the district judge, the panel rejected the government's contention that it was not content-based but only relationship-based. The panel stated:
Instead, the exemption regulates on the basis of the content of the phone call. Under the debt-collection exemption, the relationship between the federal government and the debtor is only relevant to the subject matter of the call. In other words, the debt-collection exemption applies to a phone call made to the debtor because the call is about the debt, not because of any relationship between the federal government and the debtor.
a private debt collector could make two nearly identical automated calls to the same cell phone using prohibited technology, with the sole distinction being that the first call relates to a loan guaranteed by the federal government, while the second call concerns a commercial loan with no government guarantee.
Unlike the district judge, the Fourth Circuit concluded that the exemption failed strict scrutiny:
It is fatally underinclusive for two related reasons. First, by authorizing many of the intrusive calls that the automated call ban was enacted to prohibit, the debt-collection exemption subverts the privacy protections underlying the ban. Second, the impact of the exemption deviates from the purpose of the automated call ban and, as such, it is an outlier among the other statutory exemptions.
However, the Fourth Circuit agreed with the government that the exemption was severable, citing NFIB v. Sebelius (2012), and reasoning that severing the debt-collection exemption will not undermine the automated call ban. given that for twenty-four years, from 1991 until 2015, until the exemption was added, the automated call ban was “fully operative.”
The United States Supreme Court has now added this case to its 2019-2020 Term.