Novel Arguments Could Help Defend Against Expansive TCPA Liability

October 28, 2020

UpdateOn 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 2020

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.

McGuireWoods 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.