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

Business Litigation Update

Date: October 12, 2020

Introduction

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.

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).

Factual Background

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.

District Court Decision

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.

Conclusion

If adopted by other courts, this ruling could eliminate TCPA claims for calls made between November 2, 2015 and July 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.

FOR MORE INFORMATION

For more information, please contact:

Jessica E. Salisbury-Copper
937.443.6854
Jessica.Salisbury-Copper@ThompsonHine.com

Scott A. King
937.443.6560
Scott.King@ThompsonHine.com

Doori Song
216.566.5648
Doori.Song@ThompsonHine.com

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