In 2015, Congress amended the Telephone Consumer Protection Act (TCPA) to exempt calls made to collect a debt owed to or guaranteed by the federal government from the TCPA’s ban on unwanted robocalls to cell phones. Last week, in a case called American Association of Political Consultants v. FCC, the U.S. Court of Appeals for the Fourth Circuit held that the exception created an unconstitutional content-based restriction on speech in violation of the First Amendment. (Broadly speaking, a law creates a “content-based” restriction when it allows some speech and prohibits other speech depending on what the speaker says.)
Fortunately, the court refused to strike down the TCPA's ban on robocalls to cell phones in its entirety, as the plaintiffs requested, but instead “severed” the government-debt-collection exception from the rest of the statute and invalidated it alone, leaving the rest of the TCPA intact.
Although the court’s First Amendment analysis has some troubling implications for government regulation of commercial activity, no one (except, perhaps, student-loan debt collectors and government budget-hawks) is likely to be too upset by the invalidation of the government-debt-collection exception. Constitutional or not, the provision created an opening for robocalls to student-loan borrowers and others who took out unsustainable government-guaranteed debt. Although the TCPA still prohibits far more unwanted robocalling than it allows, the 2015 exception was probably a bad policy choice, and I won’t be very sorry to see it go as long as that is all the impact that First Amendment challenges have on the TCPA.
The challengers in the Fourth Circuit case, who use robocalling for political purposes, wanted far more than they got from the court. They hoped not just to invalidate the government-debt-collection exception, or to have the TCPA declared unconstitutional as applied to political speech, but to bring down the TCPA’s ban on unwanted robocalls to cell phones in its entirety, leaving consumers vulnerable to unwanted telemarketing.
The challengers included not only business interests (political consultants and pollsters) who make money from political robocalls, but also the Democratic Party of Oregon and the Washington State Democratic Central Committee. It’s sad to see political parties dedicated to progressive values and consumer protection attempting to take down a major consumer-protection law principally aimed at commercial speakers who, left unchecked, would likely besiege our cell phones (and residential landlines, for those like me who still have them) with nonstop robocalls. One hopes that they will think better of pursuing their misguided challenges to the TCPA further.
A case presenting similar arguments against the TCPA, Gallion v. Charter Communication, is currently pending in the Ninth Circuit. There, the challenge is being brought by a company that used unwanted text messages for purely commercial purposes and was sued under the TCPA by a consumer who received one of its marketing texts. The federal government is defending the TCPA in that case, as it did in the Fourth Circuit, and also advocating severance if the court sees a constitutional problem with the government-debt-collection exception. That case was argued earlier this year and will likely be decided sometime in the coming months.
