Is the Telephone Consumer Protection Act’s (TCPA) government-debt exception to the unsolicited-cellphone-call ban a content-based restriction on speech triggering strict scrutiny under the First Amendment; and, if the exception is unconstitutional is the remedy to sever it from the remainder of the TCPA?
This case asks the Supreme Court to decide whether the TCPA’s unsolicited-cellphone-call ban and its government-debt exception are valid under the First Amendment. Attorney General William P. Barr and the Federal Communications Commission (FCC) (collectively, “the Government”) argue that the government-debt exception is content-neutral because the exception distinguishes permitted and prohibited conduct solely based on economic activity. They also contend that the exception satisfies intermediate scrutiny because the exception strikes the appropriate balance between Congress’s legitimate interests in protecting consumer privacy and preserving public funds. The Government argues that the exception, if invalid, is severable from the cellphone-call ban because the ban stood for twenty-four years before the exception was enacted, and because this history suggests that Congress would prefer to leave the ban in place. The American Association of Political Correspondents, Inc., et al. (collectively, “AAPC”) respond that the ban and the exception are content-based because they restrict permitted call topics and that neither the ban nor the exception survive either strict or intermediate scrutiny because there is no privacy interest to which the cellphone-call ban and the government-debt exception are closely tailored. AAPC refutes that severability is the appropriate remedy because the whole ban is an unconstitutional restriction on speech. The Court’s decision raises concerns about the potential impact on the government’s efforts in protecting consumer privacy and in helping borrowers avoid default on debts owed to or guaranteed by the federal government. The Court’s decision raises concerns about consumers’ privacy interests, the government’s ability to collect debt, and increasing litigation costs.
Questions as Framed for the Court by the Parties
Whether the government-debt exception to the Telephone Consumer Protection Act of 1991’s automated-call restriction violates the First Amendment, and whether the proper remedy for any constitutional violation is to sever the exception from the remainder of the statute.
In 1991, Congress enacted the Telephone Consumer Protection Act (“TCPA”) aimed at protecting Americans from unsolicited, intrusive phone calls. Am. Ass’n of Political Consultants v. Barr at 4. Specifically, the TCPA prohibits phone calls generated by automated messages or automated dialing systems to cell phones (the “cellphone-call ban”). Id. at 4–5. As enacted, this ban does not apply when the call is generated for emergency purposes or with the recipient’s prior explicit permission. Id. at 5. In 2005, Congress amended the TCPA by adding a third exemption to the cellphone-call ban: the ban would not apply to calls to cell phones that are generated for the purpose of collecting debt owed to or guaranteed by the United States federal government (“government-debt exception”). Id. at 5–6.
In May 2016, the American Association of Political Consultants, Inc. and others (together “the plaintiffs”), filed suit against the United States Attorney General Loretta Lynch, and the Federal Communication Commission (together “the defendants”) before the District Court for the Eastern District of North Carolina (the “District Court”). Id. at 6. The plaintiffs alleged that the debt-collection exemption constitutes a content-based restriction on speech, thus violating their right to free speech guaranteed by the First Amendment. Id.
The District Court granted summary judgment in favor of the defendants. Id. at 7. On appeal, the plaintiffs further argued that the unconstitutional debt-collection exemption is not severable from the automated-call ban, and as such the automated-call ban as a whole is unconstitutional and should be struck down entirely. Id. at 11. On April 24, 2019, the Court of Appeals for the Fourth Circuit (the “Fourth Circuit”) vacated the District Court’s summary judgment, held that the debt-collection exemption unconstitutionally violates the First Amendment, and ordered that the debt-collection exemption be severed from the remainder of the TCPA. Id. at 22, 24–25.
The U.S. Attorney General William Barr and the FCC petitioned to the Supreme Court, which granted certiorari on January 10, 2020. Id.
ARE THE CHALLENGED PROVISIONS CONTENT-BASED?
The Government argues that the government-debt exception to the automated-call restriction in the TCPA is not a content-based regulation of speech. Brief for Petitioner, William P. Barr & Federal Communications Commission at 14–15. While the Constitution requires at least some scrutiny of Congress’s restrictions on speech, the Government explains, courts treat content-neutral regulations more deferentially than content-based restrictions. Id. The government-debt exception is content-neutral, the Government contends, because the TCPA’s restrictions turn on factors independent of content, such as whether the debt is government-owned and whether the caller is authorized to collect the debt. Id. at 16–17. As an example, the Government posits that an automated call consisting of the content “please promptly submit this month’s payment” would be permissible if payment were on a government debt, but impermissible on a private debt. Id. Thus, the Government argues, the content of many such calls will be irrelevant to determining whether the TCPA prohibits the calls, making the government-debt exception a content-neutral one. Id. at 17–18. Although the Government concedes that it will occasionally be necessary to view a call’s content as evidence that the caller seeks to collect a government debt, it maintains that merely using content as evidence does not amount to a content-based restriction triggering strict scrutiny. Id. at 19. Instead, the Government contends, the exception focuses on the economic activity the caller engages in rather than the content of calls. Id. Similarly, the Government maintains, other statutes such as the Fair Debt Collection Practices Act (FDCPA), the Fair Credit Reporting Act (FCRA), and various securities laws target communications incident to specific kinds of economic activity, and because those laws have never been found to regulate content, neither should the government-debt exception. Id. at 20–22.
The American Association of Political Consultants, Inc., et al. (collectively, “AAPC”) maintain that the government improperly focuses on the government-debt exception rather than the cellphone-call restriction. Brief for Respondents, American Association of Political Consultants, Inc., et al. at 16. AAPC contends that the cellphone-call restriction is content-based because even government-debt collectors may not discuss, for example, loan consolidation and forgiveness—the only permissible topic is “collection.” Id. at 18. As further indication that the restriction is content based, AAPC cites an FCC order indicating that if a call includes advertising- or sales-related content, this content transforms an otherwise permissible call into an impermissible one. Id. at 17. Countering the Government’s suggestion that the government-debt exception is the cellphone-call restriction’s only potential infirmity, AAPC maintains that the cellphone-call restriction privileges the speech of government actors over that of citizens and that the provision vests significant discretion in the FCC to make content-based exceptions. Id. at 18–20. AAPC notes that the content-neutral factors on which the Government purports to assess calls––whether the debt was owed to the United States, whether the caller had authority, and whether the debt was delinquent––originate not from the statute, but from a later-withdrawn proposed FCC regulation, which the AAPC argues is entitled to no weight. Id. at 21–22. In any event, AAPC argues, the statute is still constitutionally infirm because it effects a content-based ban on speech in that it prohibits speech based on the “message a speaker conveys.” Id. AAPC further distinguishes the FDCPA, FCRA, and other laws cited by the Government in that those laws do not contain the same “self-serving” government-speech provisions and more closely track economic activity. Id. at 24–25.
DOES THE EXCEPTION SURVIVE THE APPROPRIATE LEVEL OF CONSTITUTIONAL SCRUTINY?
The Government contends that because the government-debt exception is content-neutral, it need only satisfy intermediate scrutiny to survive a First Amendment challenge. Brief for Petitioner at 24. The exception satisfies intermediate scrutiny, the Government argues, because it is narrowly tailored to further the government’s interest in protecting the public fiscal interest while intruding only minimally on the consumer privacy interests that the TCPA was designed to protect. Id. at 24. The Government claims that hundreds of billions of dollars of delinquent debt owed to the United States remains uncollected. Id. at 25. Collecting this debt is costly to the Government, it argues, and allowing automated calls would save the Government and public an estimated $120 million over ten years. Id. Moreover, the Government continues, the government-debt exception less strongly implicates the TCPA’s consumer-privacy aims because those who borrow money under an obligation to repay it should reasonably expect to be contacted if they shirk their obligations. Id. at 28. Borrowers, the Government contends, therefore have a lessened expectation of privacy with respect to calls to collect money owed. Id. The government-debt exception’s minimal intrusiveness is further reduced, the Government argues, by its restricted reach; only those with government loans receive calls, and only from authorized collectors. Id. at 30. Thus, the Government concludes, because of weighty countervailing public fiscal interests in government debt-collection calls, Congress could permissibly prioritize fiscal interests over privacy interests in this context. Id. at 32. The Government counters the Ninth Circuit’s suggestion that Congress could have content-neutrally allowed for government debt collection by tying the exception to the debtor’s relationship with the government, responding that such an exception would justify any call to a government debt holder for any purpose, and would thus be overbroad and fail to protect consumer privacy. Id. at 26.
AAPC replies that because the overarching cellphone-call restriction is content-based, the restriction must satisfy strict scrutiny. Brief for Respondent at 25. The ban fails strict scrutiny, AAPC argues, because privacy is not a “compelling” government interest, and even if it were, the ban is not tailored to the asserted privacy interest. Id. at 25–26. If the Government’s asserted privacy interest covers all unsolicited calls, then the TCPA’s residential-call provision allowing noncommercial and non-telemarketing calls to homes is inconsistent with such a broad privacy interest because the residential-call provision is less expansive than the cellphone-call restriction. Id. at 26–27. Furthermore, AAPC maintains, the “sweeping” exceptions that Congress allows to the cellphone-call ban further undermines the Government’s insistence on the importance of its asserted privacy interest. Id. at 28. On the other hand, AAPC continues, if the asserted privacy interest is read more narrowly as extending only to nuisance telemarketing calls, the cellphone-call ban is overbroad because it extends to calls made by devices that even potentially could function as auto-dialers, including smartphones. Id. at 29–30. Although Congress likely contemplated protecting cellphone users from unwanted charges in enacting the cellphone-call restriction, AAPC asserts, because most cellphone carriers no longer impose charges for calls, the Government cannot rely on charge-avoidance to justify the ban’s broad scope. Id. AAPC further stipulates that even if intermediate scrutiny applied, the cellphone-call restriction still fails. Id. Because AAPC is challenging the ban, not its exception, the Government’s fiscal interests in enacting the exception are irrelevant, AAPC argues. Id. at 31. Even under intermediate scrutiny, AAPC contends, the Government bears the burden of showing that the ban furthers the Government’s asserted interest. Id. Because the Government fails to defend the poor fit between the asserted privacy interest and the ban’s coverage, AAPC argues, the ban fails even intermediate scrutiny. Id. at 33.
IF CONTRARY TO THE FIRST AMENDMENT, IS THE GOVERNMENT-DEBT EXCEPTION SEVERABLE FROM THE REST OF THE TCPA?
The Government maintains that the government-debt exception is severable from the TCPA’s automated-call restriction. Brief for Petitioner at 33–34. The Government argues that the touchstone for severability is congressional intent. Id. Congress declared its intent unambiguously, the Government contends, by including a severability clause providing that if any part of the TCPA is held invalid, a reviewing court shall to the extent possible leave the Act intact. Id. at 34. The Government draws further support for severability from the TCPA’s twenty-four-year history prior to the government-debt exception. Id. at 35. This history suggests that although Congress may have desired a government-debt exception, Congress would prefer the automated-call restriction without the exception to no automated-call restriction at all. Id. Moreover, the Government contends, although striking down the exception would lead to more speech being restricted, Congress is still empowered to impose those restrictions, and the Court should not invalidate the entire statutory scheme when more targeted remedies are possible. Id. at 40–42.
AAPC responds that the Government’s focus on severability is misguided because the overall cellphone-call ban is unconstitutional. Brief for Respondents at 35. Although the content-based government-debt exception is evidence of improper justification, AAPC argues, severing the evidence of impropriety from the statute does nothing to remedy the speech restriction prohibited by the First Amendment. Id. Moreover, AAPC argues, a court would implicate separation-of-powers concerns by striking down the exception but leaving the ban in place, because the court would be prohibiting speech that Congress preferred to preserve. Id. at 38–39. The Court’s First Amendment precedent militates in favor of striking down rather than extending the ban, AAPC argues, and the Government errs in relying on Equal Protection precedent, which does allow for striking down exceptions. Id. at 40–43, 45. The First Amendment is not concerned with unequal treatment, AAPC maintains, but abridgment of speech rights, and therefore, “levelling up” remedies such that the exception applies to no one are inappropriate. Id. at 46. AAPC argues that the rest of the TCPA would be undisturbed, consistent with the severability clause, if the cellphone-call ban were overturned, and Congress’s pursuit of other anti-robocall measures suggests that it would prefer a more tailored approach to the current one. Id. at 46–47, 49.
The Electronic Privacy Information Center (“EPIC”), in support of Barr, argues that the TCPA’s cellphone-call ban is necessary to protect consumers’ privacy. Brief of Amici Curiae EPIC et al., in Support of Petitioner at 12–13. EPIC contends that unwanted robocalls violate an individual’s right to be left alone and should outweigh “the First Amendment rights of the intruder.” Id. at 11. Furthermore, the State of Indiana points out that when Congress enacted the TCPA, it deemed automated calls “pervasive” and an “intrusive invasion of privacy.” Brief of Amici Curiae State of Indiana et al., in Support of Petitioner at 10. EPIC explains that in 1991, when EPIC was enacted, an estimated 18 million robocalls were made each day; in 2019, the number of robocalls reached 58.5 billion, indicating how invasive automated calls have become. Id. at 12–13. Moreover, EPIC asserts that such calls “outrage” consumers, indicated by the 3.8 million complaints filed before the Federal Trade Commission in the first nine months of 2019. Brief of EPIC at 15. EPIC further contends that with evolving technology and readily available mass-dialing and auto-dialing technology, the number of robocalls is likely to increase in the future. Id. at 17–18. Therefore, EPIC argues that the TCPA’s ban on automated calls “needs to be strengthened—not destroyed.” Id. at 18.
The Midland Credit Management (“MCM”), in support of AAPC, argues that the TCPA’s cellphone-call ban is not necessary to protect privacy interests. Brief of Amicus Curiae Midland Credit Management (“MCM”), in Support of Respondent at 24. Instead, MCM contends that other provisions of the TCPA can prevent intrusive calls. Id. For example, MCM points to the TCPA’s “Do-Not-Call Provisions” and other related provisions that restrict telemarketing calls and penalize telemarketers $500 per call. Id. Furthermore, the MCM notes that consumers can bring complaints before the Federal Communications Commission which “vigorously enforces laws against illegal robocalls.” Id. at 25. Facebook, Inc. agrees, adding that under certain interpretations of the TCPA, consumers could be liable for ordinary iPhone text messages and phone calls. Brief for Amicus Curiae Facebook Inc., in Support of Respondent at 28. Facebook explains that under this reading of the TCPA, any device that can autodial can be considered a prohibited “ATDS” making “virtually every number called on such a smartphone a potential TCPA violation punishable by statutory penalties.” Id. at 18. The Portfolio Recovery Associates, LLC (“PRC”) also argues that the TCPA could harm consumers by censoring messages and chilling free speech. See Brief of Amicus Curiae the Portfolio Recovery Associates, LLC, in Support of Respondent at 17. PRC contends, as an example, that group texting friends and acquaintances or setting an automatic “Do Not Disturb” response could lead to TCPA liability. Id. at 15–17.
GOVERNMENT VS. BUSINESS INTERESTS
The Student Loan Servicing Alliance (“SLSA”), in support of Barr, argues that invalidating the TCPA’s government-debt exception would undercut the government’s ability to collect debts. Brief of Amicus Curiae Student Loan Servicing Alliance, in Support of Petitioner at 16–17. SLSA explains that protecting the government’s ability to timely and efficiently collect federal-government debt is essential to maintain government services and programs. Id. at 17. SLSA points out that the government had approximately $203 billion worth of delinquent debt in 2018, exposing how much debt the government has to collect. Id. Specifically, the SLSA notes that the Department of Education was the largest creditor agency with, in 2019, approximately 7 million individuals defaulting on their federally-managed student loans, the total value of which reached $161.3 billion. Id. The SLSA contends that having live, in-person conversations over the phone is an important avenue for the government to collect such debt. Id. at 20. It explains that such calls help borrowers understand loan repayment options and ensures due process by giving them every “opportunity to repay debt in accordance with their financial ability to pay.” Id. at 23. Therefore, the SLSA contends that the TCPA’s government-debt exception is crucially important as it was estimated to save the federal government $120 million over ten years. Id.
The Chamber of Commerce (the “Chamber”), in support of AAPC, counters that the TCPA causes extensive litigation and imposes unnecessary costs on the courts and businesses. Brief of Amicus Curiae Chamber of Commerce, in Support of Respondent at 16–17. The Chamber explains that plaintiffs congregate to bring class action lawsuits against businesses after receiving TCPA-prohibited calls. Id. The Chamber asserts that businesses will be forced to settle such lawsuits due to the massive number of claimants and the potential for millions of dollars in losses. Id. It notes that in 2018, TCPA settlements totaled approximately $171 million and in 2016, litigants filed over 5,000 TCPA lawsuits. Id. at 12, 16, 17. Moreover, the Chamber contends that some plaintiffs go to extreme lengths to capitalize on TCPA lawsuits by obtaining multiple phone numbers or engaging other tactics to increase the likelihood of receiving a TCPA-prohibited call. Id. at 17. Moreover, MCM adds that this expansive litigation will harm businesses who offer text-messaging and social networking services. Brief for MCM at 15–16. For instance, MCM points to TCPA lawsuits against companies such as GroupMe, Twitter, Google, and Lyft. Id. MCM also notes that banks, labor unions, pharmacies, and sports teams are some of the other industries that have been subjected to TCPA lawsuits. Id. at 18–20. Therefore, MCM contends that the TCPA places excessive burdens and costs on businesses through its ever-expanding litigations. Id. at 16–20.
- Blaine C. Kimrey & Bryan Clark: Five Key TCPA Cases to Know as We Enter the Second Quarter of 2020, National Law Review (April 4, 2020).
- Allison Grande: Entire TCPA Autodialer Ban Should Be Axed, High Court Told, Law360 (March 25, 2020).