Is the TCPA Unconstitutional and Other Controversies Percolating in the Courts

The global pandemic has not prevented courts from addressing a host of controversial TCPA topics, starting with the biggest controversy of all: whether the Telephone Consumer Protection Act itself is unconstitutional. The U.S. Supreme Court made history this month by hearing oral arguments on this question remotely. Meanwhile, the 11th U.S. Circuit Court of Appeals weighed in on whether revocation can be limited by contract, and the 3rd Circuit addressed whether an invitation to buy — as opposed to an invitation to sell — constitutes a “solicitation” under the TCPA’s fax provisions.

• U.S. Supreme Court Hears Oral Argument on Constitutionality of TCPA. On May 6, 2020, the Supreme Court heard long-awaited oral arguments in William P. Barr et al. v. American Association of Political Consultants et al. regarding the constitutionality of the TCPA. The focus of Barr is an amendment to the TCPA that exempts autodialed debt collection calls for debts owed to or guaranteed by the federal government from the TCPA’s prohibition of autodialed calls to cell phones without consent. At issue is whether the exemption violates the First Amendment because it allows government-approved speakers to use automated text messages and calls to cell phones, while other groups, such as political organizations like the respondents, are barred from using the same technology for political speech. According to the respondents, this “content-based scheme arbitrarily favors commercial speech over core political speech” and therefore violates the First Amendment.
  
  During oral argument, several justices seemed to accept that the exemption was content-based, and therefore could not survive strict scrutiny review under the First Amendment. As a result, the justices focused on the appropriate remedy if the exemption violated the First Amendment — i.e., whether to sever the exemption or strike the TCPA’s prohibition on automated calls entirely. On the one hand, Chief Justice John Roberts stated: “It seems pretty obvious that the way they would solve it is get rid of this exception. It’s an extremely popular law. Nobody wants to get robo-calls on their cell phones.” In agreement, Justice Neil Gorsuch stated that the “intuitive argument” is to “just get rid of the government-based exception and … go back to the status quo ante where everything was fine.” On the other hand, Justice Samuel Alito highlighted that, if the Supreme Court severed the exemption, “the complaining party does not get what it wants, which is the ability to speak without restriction.” While it seems as though the justices are leaning toward severing the exemption if it is found to violate the TCPA, it remains to be seen whether the justices decide to take more sweeping action.
  
  
• 11th Circuit Holds Contractually Provided Consent Cannot Be Unilaterally Revoked. On May 20, the 11th Circuit issued its decision in Linda Medley v. Dish Network , LLC, becoming the second U.S. Court of Appeals to consider whether the TCPA allows unilateral revocation of consent given in a bargained-for contract. The 11th Circuit in Medley held that such consent could not be revoked. The plaintiff in Medley had entered into a contract with Dish to receive TV services. In the contract, the plaintiff provided her cell phone number and expressly authorized Dish to contact her through an automated or predictive dialing system or a prerecorded messaging system. The plaintiff’s attorneys later sent a fax to Dish attempting to revoke the plaintiff’s consent. The 11th Circuit reasoned that permitting the plaintiff to unilaterally revoke a mutually agreed-upon term in a contract would run counter to black-letter contract law. The 11th Circuit’s holding that consent could not be unilaterally revoked joined the 2nd Circuit’s 2017 decision in Reyes v. Lincoln Auto. Fin. Svcs., which similarly held that the TCPA does not permit a party who agrees to be contacted as part of a bargained-for exchange to unilaterally revoke that consent.
  
  
• 3rd Circuit Says Fax Solicitations Offering to Buy Products or Services Can Violate the TCPA. On May 15, the 3rd Circuit delivered its opinion in a pair of appeals, holding 2 to 1 that faxes offering tobuy products or services (as opposed to faxes offering to sell the same) could be a violation of the TCPA. The faxes at issue sought doctors to participate in market research surveys in exchange for compensation. The court addressed whether those faxes were “unsolicited advertisements” as defined in the fax provisions of the TCPA. Although market research is not considered “telemarketing” for purposes of the TCPA’s calling provisions, the 3rd Circuit drew a distinction for faxes offering compensation in exchange for participating in a survey. According to the 3rd Circuit, “a fax attempting to buy goods or services is no less commercial than a fax attempting to sell goods or services to the recipient.” Judge Kent Jordan dissented, writing that the majority opinion improperly expanded the TCPA beyond its statutory language.