Cincinnati, Ohio privacy attorney and TCPA lawyer reviewing the U.S. Supreme Court hearing on the constitutionality of the government debt exception statute
The U.S. Supreme Court recently argued the constitutionality of a part of the Telephone Consumer Protection Act (TCPA), a law that restricts communications made with an automated telephone dialing system, mostly utilized in telemarketing operations.
The TCPA statute, originally enacted in 1991, restricts the use of an automatic telephone dialing system (ATDS) to make calls or distribute mass texts to mobile numbers without the recipient’s prior express consent. In 2015, the TCPA was amended to exempt calls made to collect a debt owed to the United States—the TCPA government debt exception.
The question brought before the Supreme Court is whether the government-debt exception is unconstitutional and, if so, whether the proper legal remedy is to dump the exception—leaving the rest of the TCPA law as it stands—or to invalidate the entire robocalling prohibition. Experts say the exception is likely to be severed.
The American Association of Political Consultants (AAPC) has challenged the government debt exemption, claiming the decision by Congress to exempt government-owned debt from the TCPA constituted a “content-based regulation of speech,” and says it violates the First Amendment. The AAPC asked the court to invalidate the entire cellular telephone restriction.
The onus is on the government to demonstrate a compelling justification for the policy—also known as “strict scrutiny.” To pass intermediate scrutiny the challenged law must further an important government interest.
Cincinnati, Ohio TCPA class action attorney Joe Lyon is representing plaintiffs in a variety of invasion of privacy cases, including telemarketing harassment class action lawsuits.
When the Bipartisan Budget Act of 2015 became law, it included an amendment to the TCPA exempting calls to consumers’ cell phones made solely to collect debts owed to the government, now commonly referred to now as the “government debt exception.”
At the recent hearing, most of the justices appeared to believe that the government debt exemption regulated speech based on its content—collection of a government-owned debt. The government had conceded in its briefing that the current regulation could not survive strict scrutiny if the court were to decide the statute was content-based.
The government argued that if the debt exemption was found to violate the First Amendment, it needed to be severed from the TCPA law. Furthermore, some arguing said severing the government debt exemption did not go far enough, calling into question the future of the TCPA violation law as it stands.
The TCPA is a very popular law and the justices clearly took this into account, some of whom pointed out that fact in the hearing. The justices, however, will be careful not to create an anti-First Amendment precedent.
Analysts say the exception to the ban on robocalls that allows collection of government debt seemed likely to fall after the U.S. Supreme Court arguments.
The dilemma the justices face is whether to strike the exemption, making speech more restrictive, which is counterintuitive to First Amendment. The only other option available that advances freedom of speech is the elimination of the cellular telephone ban in its entirety, which would in theory expand First Amendment protections.
The Lyon Firm continues to investigate individual TCPA violation claims and has filed class action lawsuits on behalf of plaintiffs nationwide. If you have received unwanted telemarketing texts or automated phone calls, contact Joe Lyon at (800) 513-2403 for a free case review.