Since 1991, the Telephone Consumer Protection Act (TCPA) has prohibited robocalls to home and cell phones, unless the called party has given consent. In 2015, Congress amended the TCPA to create an exception to the TCPA’s robocall ban for calls made solely to collect government debt. In 2020, in Barr v. American Ass’n of Political Consultants (AAPC), the Supreme Court held that the government-debt exception was a content-based speech restriction that violated the First Amendment. The Supreme Court therefore severed that exception from the TCPA and held that the remainder of the law remained constitutional and enforceable. Justice Kavanaugh’s opinion for a plurality of the Court stated that the robocall ban could not be enforced against government-debt collectors who had relied on the exception, but that the Court’s opinion did not negate any existing liability for other robocalls made in violation of the TCPA prohibition.
In this case, defendant Realgy, LLC was sued for violation of the robocall ban. In response, it argued that the ban should be unenforceable between 2015, when Congress passed the government-debt exception, and 2020, when the Supreme Court decided AAPC. The district court agreed and dismissed the plaintiff’s claims about illegal robocalls made during this period. The plaintiff appealed the ruling to the Sixth Circuit Court of Appeals.
Public Citizen filed an amicus curiae brief in support of the plaintiff. The brief explained that the district court incorrectly interpreted AAPC as striking down the TCPA’s entire robocall ban and curing the constitutional infirmity only prospectively. Moreover, we explained, although a plurality of Justices in AAPC stated that government-debt collectors should not be held liable for robocalls between 2015 and 2020, that view does not shield from liability entities who made robocalls for other purposes. The different treatment of the two classes of callers is narrowly tailored to serve the compelling interest in providing the constitutional guarantee of fair notice to regulated persons and entities.
In a decision issued in September 2021, the Sixth Circuit agreed that the First Amendment posed no hurdle to enforcing the TCPA against debt collectors. The court noted that in AAPC, the Supreme Court did not offer a remedy of “eliminating the content-based restriction” from the TCPA. Instead, the Sixth Circuit explained, the Court recognized that the Constitution had automatically displaced the government-debt-collector exception from the start, and it then interpreted the statute as it has always meant, absent that provision.