Last week, an Ohio district court found that violations of the Telephone Consumer Protection Act (“TCPA”) occurring between 2015 and July 2020 cannot be enforced because the law was unconstitutional at the time.  The case is captioned Lindenbaum v. Realgy, LLC, No. 19-CV-02862 (N.D. Ohio), and the opinion builds on an earlier decision from a Louisiana district court that reached a similar conclusion in Creasy v. Charter Communications Inc., No. 20-CV-01199 (E.D. La.).

As we have discussed before, Congress amended the TCPA in 2015 to exempt from certain of the law’s consent requirements calls made to collect a debt owed to the United States.  Earlier this year, in Barr v. American Association of Political Consultants, the Supreme Court held that the government debt exemption was unconstitutional.  But the Court severed this provision from the rest of the TCPA, rather than invalidate the entire statute.  In a dissent, Justice Gorsuch wrote that he would have not severed the government debt exemption and instead would have held that the entire TCPA was unenforceable because of the unconstitutional provision.

Both district courts have relied on Justice Gorsuch’s reasoning to find that the Supreme Court’s severance of the unconstitutional provision applies only prospectively.  These courts have reached this conclusion by considering a footnote in the plurality opinion — stating that the Court’s decision “does not negate liability of parties” who placed calls that violated the TCPA’s other provisions — to be mere dicta and not binding.

As a result, according to these two district courts, any violations occurring while the unconstitutional provisions was “on the books” — i.e., the period of time between Congress enacting the government debt exemption (2015) and the Court’s invalidation of that exemption (July 2020) — cannot be enforced because the entire TCPA was unconstitutional during that period.

It remains to be seen whether the reasoning in these trial court decisions will be adopted by other tribunals.