Today, the Supreme Court issued its decision in Barr v. American Association of Political Consultants, which addressed the constitutionality of the Telephone Consumer Protection Act (TCPA). Although the Court splintered in its reasoning—producing four separate opinions—the justices nevertheless coalesced around two core conclusions: (1) the TCPA’s exception for government debt collection calls is unconstitutional, and (2) the exception can be severed from the rest of the TCPA. Six justices determined that the TCPA’s government-debt exception violates the First Amendment, and seven justices concluded that the exception is severable from the rest of the statute. The end result is that the government-debt exception is invalid but the rest of the TCPA—including its general prohibition on automated calls and text messages to mobile numbers—remains intact. The narrow scope of this ruling suggests that it may have limited practical effect for most parties.
As we previously explained, the TCPA, as originally enacted in 1991, restricts the use of an automatic telephone dialing system (ATDS) to transmit calls or texts to mobile numbers without the recipient’s prior express consent (the ATDS prohibition). In 2015, Congress amended the TCPA to exempt from the ATDS prohibition calls made to collect a debt owed to the United States. The question before the Supreme Court was whether the government-debt exception violates the First Amendment and, if so, whether the proper remedy is to sever the exception—leaving intact the rest of the TCPA—or invalidate the entire ATDS prohibition. Continue Reading