In 2015, Congress exempted calls made to collect debts owed to or guaranteed by the United States from the TCPA’s autodialer restrictions. Today, in Barr v. American Association of Political Consultants, the Supreme Court of the United States held that the exemption unconstitutionally favors debt collection speech over political and other speech.
After determining that the exemption is unconstitutional, the court considered whether to invalidate the TCPA’s autodialer provision entirely or only the government debt exception. The plaintiffs, political and nonprofit organizations, argued that the court must strike down the entire provision. The government argued that the exception is severable; therefore, the court should leave the general autodialer provision intact. The court sided with the government on two grounds. First, the TCPA is part of a broader law (the Communications Act of 1934), which includes a severability clause. Second, even without a severability clause, prior precedent creates a presumption of severability, which the plaintiffs could not overcome.
The primary impact of the opinion is obvious. Callers trying to collect debts owed to or guaranteed by the United States must comply with the TCPA’s autodialer restrictions like everyone else. Those hoping the Supreme Court would invalidate the autodialer restrictions altogether are surely disappointed; however, asking the court to open the floodgates to millions (or billions) of prerecorded messages was always a tall order. The more likely path to curtail frivolous TCPA litigation is through a more reasonable, and consistently applied, interpretation of the term automatic telephone dialing system. That would allow companies to make live operator calls—subject to Do Not Call regulations and other consumer protection restrictions— without assuming the unnecessary risk created by inconsistent and overly-broad court interpretations.