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On September 28, 2020, the U.S. District Court for the Eastern District of Louisiana issued a decision concerning the constitutionality of the Telephone Consumer Protection Act (TCPA), which prohibits autodialed or prerecorded calls to cellphones without consent except in limited instances. Effective November 2, 2015, Congress amended the TCPA to include an exception for the government to make such calls to collect debts (“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 “cured” the constitutional violation by severing the government-debt exception from the TCPA.

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The issue before the Louisiana federal court was the impact of the Supreme Court’s determination that the TCPA’s government-debt exception was unconstitutional as to calls made between November 2, 2015 (when the exception was enacted) and July 6, 2020 (when the Supreme Court decided AAPC).

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The plaintiffs received 130 autodialed calls and text messages on their cellphones, 129 of which occurred before, but only 1 of which occurred after, the AAPC decision. Plaintiffs filed suit in the U.S. District Court for the Eastern District of Louisiana claiming that the calls violated the TCPA. The defendant responded that the court lacked subject matter jurisdiction to adjudicate the legality of its calls because the TCPA was unconstitutional when the calls were made, and the court lacked authority to enforce violations of the unconstitutional statute.

The court held that, from 2015 (when the government-debt exception was added to the TCPA) until 2020 (when the government-debt exception was severed), the TCPA was unconstitutional in its entirety. The court reasoned that prior to the inclusion of the government-debt exception, the TCPA was a content-neutral restriction on speech, a characteristic that was lost in 2015 when the exception was added, making the TCPA “repugnant to the Constitution.” As a result, the court concluded that the government-debt exception and the remainder of the TCPA were “inextricably intertwined for the purposes of any reasonable analysis.” The court held that the defendant was not liable for any of the calls prior the Supreme Court’s severance of the government-debt exception, leaving only the single call made after AAPC.

If adopted by other courts, this ruling could eliminate TCPA claims for calls made between November 2, 2015 and July&nbsp;6, 2020. Whether courts in other jurisdictions will reach similar conclusions remains to be seen. Although the U.S. Supreme Court may provide additional guidance on this issue in its upcoming consideration of Facebook Inc. v. Duguid, companies that use automatic telephone dialing systems or prerecorded calls as part of their business operations should be cautious and ensure compliance with the TCPA.

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/Business_Litigation_Update_-_Louisiana_Federal_Court_Holds_TCPA_Was_Unconstitutional_2015-2020.pdf

Louisiana Federal Court Holds that TCPA Was Unconstitutional from 2015 to 2020

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