The federal Telephone Consumer Protection Act of 1991 (TCPA) contains a number of restrictions on unsolicited telemarketing. One provision of the TCPA prohibits the use of “robocalls,” or the use of automated call systems to contact consumers without their consent, to cell phones. In 2015, Congress amended the TCPA to make a limited exemption to the robocall ban (the “Government Exemption”). Under the Government Exemption, robocalls relating to debts owed to the federal government—and only the government—were permitted.
In the 2020 case Barr v. Am. Ass’n of Political Consultants, the Supreme Court of the United States struck the Government Exemption under the First Amendment, finding it to be an unconstitutional content-based restriction. The Court also found that the Government Exemption was severable from the remainder of the statute. The result going forward is that the TCPA ban on robocalls can still be applied to future violations; the government simply will no longer be exempt from it.
Barr did not, however, settle the question of whether and how the robocall ban could still be enforced for violations that occurred in the period between 2015 and 2020, while the Government Exemption was in effect. This case, brought before the Sixth Circuit, now raises this issue. The defendant here allegedly made prohibited robocalls to the plaintiff in the period of time before Barr, and the plaintiff brought a class action lawsuit in federal court in the Northern District of Ohio.
Enforcing the TCPA against the defendant would create a dangerous precedent. If successful, this lawsuit would establish that even after a law is found to be unconstitutionally discriminatory, that unconstitutional law can still be enforced retroactively against the “disfavored” group (in this case a private entity), but not the “favored” group (in this case the government), even though the law contained no exception for the favored group at that time of the disfavored group’s alleged violation of the law. Such a decision could have serious ripple effects in free speech law and beyond.
The Sixth Circuit appeal was filed on November 30, 2020. We filed our amicus brief on March 18, 2021. Briefing has now concluded and oral argument was held on July 29.