The U.S. Court of Appeals for the Ninth Circuit yesterday rejected Facebook's effort to avoid a Telephone Consumer Protection Act lawsuit on First Amendment grounds. Facebook had argued that a recent amendment to the law, which excepted calls seeking to collect debts owed to or guaranteed by the federal government from the TCPA's ban on robocalls to cell phones, made the statute an unconstitutional content-based restriction on speech. The court agreed with Facebook but held that the argument didn't do Facebook any good: The remedy the court gave was to sever and invalidate the government-debt exception while leaving the rest of the statute intact. In so doing, the court followed a Fourth Circuit decision from earlier this year.
If this approach is followed by other courts, consumers will benefit twice over: They'll still have the benefit of the TCPA's protections, plus be relieved of the provision that allows student debt collectors and others to do what most callers can't do: pester cell-phone users with unwanted, autodialed calls.
One can disagree with the courts' view that the government debt-collection exception is unconstitutional while still not mourning its loss. Unfortunately, the issue probably will need to be litigated in other circuits before it is ultimately resolved. Congress could solve the problem once and for all by just excising the government-debt exception, which wasn't part of the original TCPA and shouldn't ever have been added.