In Wake of Barr v. AAPC, Solicitor General Defends TCPA Constitutionality

TCPA Connect

The federal government has waded into a debate on the constitutionality of the Telephone Consumer Protection Act (TCPA), an issue being litigated in the wake of the Barr v. American Association of Political Consultants (AAPC) decision by the Supreme Court last year.

In 2015, Congress amended the TCPA to allow the use of automated technologies for calls made to collect debts owed to or guaranteed by the United States without the consent of the person being called.

But in 2020, the nation’s highest court ruled in AAPC that because this exception was content-based, it was unconstitutional, severing the exception from the remainder of the statute.

Relying on that decision, a TCPA defendant moved to dismiss a putative class action filed against it in the U.S. District Court for the Northern District of Ohio.

The case is Lindenbaum v. Realgy, LLC. The plaintiff, Roberta Lindenbaum, alleged that energy company Realgy hired a third-party entity to make prerecorded calls on its behalf without consent in violation of the statute. She claimed the calls—none of which concerned the collection of a government-backed debt—were made in November 2019 and March 2020.

After the Supreme Court decided AAPC, Realgy moved to dismiss Lindenbaum’s lawsuit. It argued that the government-backed debt exception’s invalidity effectively made the entire TCPA unconstitutional for the period of 2015 through final judgment in AAPC in July 2020. Therefore, Realgy told the court, the statute cannot be enforced against any robocaller for that time period.

The district court agreed and granted Realgy’s motion to dismiss. Lindenbaum appealed to the U.S. Court of Appeals for the Sixth Circuit, and the Acting Solicitor General exercised the United States’ statutory right to intervene in the case to defend the constitutionality of the TCPA during the period in question.

In its brief, the government noted that Realgy’s argument disregarded the Supreme Court’s plurality opinion in AAPC, which held that the government-debt exception did not render “the entire 1991 robocall restriction unconstitutional,” as well as its admonishment that the decision did “not negate the liability of parties who made robocalls” prior to the district court’s decision.

Realgy’s position was also at odds with long-standing principles of judicial review, the government said. The government’s brief stated:

The district court’s holding runs counter to the rule that “an unconstitutional statutory amendment ‘is a nullity’ and ‘void’ when enacted, and for that reason has no effect on the original statute.” In circumstances like these, in which the pertinent statute was valid as originally enacted, an unconstitutional amendment is “powerless to work any change in the existing statute,” and the original “statute must stand as the only valid expression of the legislative intent.”

Applying this rule, the Supreme Court “has repeatedly allowed a finding of liability under statutes that were valid when enacted but to which invalid and severable amendments were attached at the time of the alleged violation,” the government argued. “Nothing in the AAPC Court’s holding regarding the invalidity of the government-debt exception precludes defendant’s liability for unrelated violations of the automated-call restrictions.”

When the Supreme Court holds that part of a statute is inconsistent with the Constitution, “it is holding that the provision was unconstitutional from the outset, not that it is newly invalid upon the entry of final judgment,” the government added.

“In concluding that the [government-backed debt] exception was severable from the remainder of the statute, the Court said what the TCPA has always meant, not what it meant as of the date of the Court’s decision. Accordingly, there was never a time when the exception was invalid but not severed; by operation of law, the exception has been both invalid and severed since the date of its enactment, and [Realgy] may be held liable under the valid remainder of the statute.”

To read the government’s brief in Lindenbaum v. Realgy, LLC, click here.

Why it matters: The federal government’s brief filed with the Sixth Circuit was adamant: The enactment of the government-backed debt exception to the TCPA did not render the remainder of the statute unconstitutional, and the Supreme Court’s ruling in AAPC did not restore its validity. Only the exception was impacted by the justices’ decision, meaning that the TCPA can be enforced against robocallers for the period of 2015–2020, the Solicitor General told the court. Additionally, various defendants have attempted to make the same constitutionality argument as Realgy did in Lindenbaum, albeit with limited success, and so far a majority of district courts have rejected it. Thus far, no appellate courts have weighed in on this topic, though various cases like this are presently on appeal.

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