Update: On April 1, 2021, the U.S. Supreme Court issued its long-awaited opinion in Facebook v. Duguid, which resolved the circuit split regarding the meaning of “automatic telephone dialing system” under the Telephone Consumer Protection Act. For more details, see our alert.
Update: The Supreme Court on July 9 agreed to take up the issue of what
constitutes an “automatic telephone dialing system” under the TCPA. For
more details, please see our
December 15 alert.
Did the U.S. Supreme Court ruling in Barr v. American Association of Political Consultants wipe out
nearly five years of liability under the Telephone Consumer Protection Act
(TCPA)? One district court answered yes. Does the TCPA reach text messages?
One amicus in Facebook v. Duguid
— another case poised for resolution by the Supreme Court — argued no.
Though it remains to be seen whether these novel arguments will gain
traction, defendants facing TCPA litigation may want to consider raising them.
District Court: No TCPA Liability for Calls From November 2015 to July
On Sept. 28, 2020, the Eastern District of Louisiana issued a ruling in Creasy v. Charter Communications, Inc., interpreting the U.S.
Supreme Court decision in Barr v. American Association of Political Consultants. The
reasoning of Creasy, if followed by other courts, could
significantly reduce liability for automated calls and text messages made
in the last five years.
previously reported that in Barr, the Supreme Court considered a November 2015
amendment to the TCPA’s automated calling restrictions that permitted
automated calls to collect debts owed to or guaranteed by the federal
government. The Supreme Court ruled that this amendment unconstitutionally
favored debt-collection speech over other speech and severed the amendment
from the statute. In Barr, however, the court did not reach a
consensus on whether TCPA defendants can be held liable for calls or text
messages placed from November 2015 to July 2020 — the time the statute was
found to be unconstitutional.
In the plurality opinion authored by Justice Kavanaugh, three Justices took
the position that the court’s decision in Barr would not negate
the liability of parties who made automated calls while the amendment was
operative. Two other Justices disagreed, reasoning that shielding only
government-debt collection callers from past liability under an
unconstitutional law would endorse the content discrimination the court
said it was seeking to eliminate.
In Creasy, Charter Communications argued that the TCPA’s
prohibition on autodialed calls was unconstitutional from the time the
amendment was enacted (November 2015) to the time the amendment was ruled
unconstitutional (July 2020), and thus the court lacked subject matter
jurisdiction for the automated calls and texts made within that time frame.
The district court agreed, reasoning that “the entirety of the
pre-severance version of § 227(b)(1)(A)(iii) is void because it itself was repugnant to the Constitution before the Supreme Court
restored it to constitutional health in [Barr].” The district
court suggested that this issue may create a new circuit split for the
Supreme Court to address in the future.
Facebook v. Duguid
Amicus Brief: Text Messages Are Beyond TCPA Reach
As McGuireWoods reported
March 20 and
July 10, 2020, what constitutes an “automatic telephone dialing system” (ATDS) under the
TCPA is the subject of a circuit split that the U.S. Supreme Court has
agreed to consider in Facebook v. Duguid. The Supreme Court is set
to hear arguments in this matter on Dec. 8, 2020. Recognizing the
opportunity to weigh in on what will inform the greater TCPA landscape,
amicus briefs have been pouring in to the court.
Of particular note is
one from the Washington Legal Foundation, which argues that the scope of the TCPA has been impermissibly expanded
by courts not just in how they interpret the term ATDS, but also because
the TCPA should not apply to text messages at all. The amicus
brief argues that the plain language of the TCPA bans only calls — not
texts — and that its subsequent application to text messages is the result
of “overreliance on the statute’s purpose and a game of follow the leader”
which led “the judiciary to rewrite the TCPA to cover text messages.” The
amicus brief points out that the first text message was not sent until
nearly a full year after the TCPA was passed, meaning Congress could not
have intended to include text messages in the TCPA’s scope.
Though the Supreme Court may not take up this issue in Facebook, it is an argument defendants can certainly consider making in TCPA
litigation premised upon text messages.