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The Telephone Consumer Protection Act (TCPA) generally prohibits autodialed or prerecorded calls to cellphones without consent. Prior to its amendment in 2015, the TCPA was viewed as a constitutionally permissible “time, place and manner” restriction on speech. Effective November 2, 2015, Congress amended the TCPA to permit the government to make automated or prerecorded calls to collect debts regardless of whether the government had consent (“government-debt exception”). On July 6, 2020, in Barr v. Am. Ass’n of Political Consultants (AAPC), the U.S. Supreme Court held that the government-debt exception unconstitutionally restricted speech based on content. The Supreme Court saved the balance of the TCPA by “severing” the government-debt exception from the rest of the statute.

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On October 29, 2020, the U.S. District Court for the Northern District of Ohio became the second court to hold that the TCPA was unconstitutional in its entirety from November 2, 2015 through July 6, 2020 and dismissed a TCPA class action seeking damages for calls between those dates.

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Plaintiff Roberta Lindenbaum filed a putative class action suit alleging that the defendants made prerecorded calls to Lindenbaum’s cellphone without her consent and were in violation of the TCPA. The defendants moved to dismiss the case for lack of subject matter jurisdiction, arguing that because the Supreme Court’s decision in AAPC only severed the unconstitutional government-debt exception as of July 6, 2020, the TCPA was unconstitutional when the calls were made and, as a result, the court lacked jurisdiction.

The Northern District of Ohio held that the TCPA was unconstitutional on its face and could not be enforced against any defendant for calls made from 2015 (when the government-debt exception was enacted) until 2020 (when the Supreme Court’s AAPC decision severed the government-debt exception). While unconstitutional statutes are normally void from their enactment, the district court held that rule did not apply to amendments. According to the district court, the Supreme Court’s severance of the government-debt exception in 2020 did not “appl[y] retroactively so as to erase the existence of the exception” and thereby “cure” the TCPA’s constitutional violation between 2015 and 2020. Instead, the district court found that the severance of the government-debt exception applied only prospectively, meaning that the TCPA’s provisions may be enforced only as to calls made after July 6, 2020. In reaching this decision, the Northern District of Ohio agreed with a recent decision from a Louisiana federal court.

Although the recent holdings by the Ohio and Louisiana courts are arrows in the quiver of TCPA defendants, they have not been adopted by any circuit courts of appeals or any other judges in those judicial districts. Moreover, the holdings have no impact on calls placed after July 6, 2020. As a result, any businesses that are subject to the TCPA should carefully consider its provisions and be cautious to ensure their compliance with the TCPA’s mandates.

Jessica E. Salisbury-Copper 937.443.6854 <a href="mailto:Jessica.Salisbury-Copper@ThompsonHine.com">Jessica.Salisbury-Copper@ThompsonHine.com</a>

Scott A. King 937.443.6560 <a href="mailto:Scott.King@ThompsonHine.com">Scott.King@ThompsonHine.com</a>

Doori Song 216-566-5648 <a href="mailto:Doori.Song@ThompsonHine.com">Doori.Song@ThompsonHine.com</a>

This advisory bulletin may be reproduced, in whole or in part, with the prior permission of Thompson Hine LLP and acknowledgment of its source and copyright. This publication is intended to inform clients about legal matters of current interest. It is not intended as legal advice. Readers should not act upon the information contained in it without professional counsel.

This document may be considered attorney advertising in some jurisdictions.

https://admin.thompsonhine.com/wp-content/uploads/2022/04/Ohio_District_Court_Agrees_TCPA_was_Unconstitutional_from_2015_to_2020.pdf

Ohio District Court Agrees that TCPA Was Unconstitutional from 2015 to 2020

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