EPIC - Barr v. American Association of Political Consultants

Barr v. American Association of Political Consultants

Whether the Government Debt Collection Exemption to the Robocall Ban in the Telephone Consumer Protection Act is Unconstitutional and Should Be Severed

Background|
EPIC's Interest|
Legal Documents|
News

Supreme Court Strikes Down Government Debt Exception, Preserves Rest of Anti-Robocall Law: The U.S. Supreme Court declared that the government debt exception to the Telephone Consumer Protect Act violates the First Amendment and severed the exception, preserving the law’s important privacy protections. The case, Barr v. American Association of Political Consultants, concerned a First Amendment challenge to the law that protects consumers from robocalls and the proper remedy when an exception to a statute violates the First Amendment. EPIC defended the TCPA in an amicus brief. EPIC said that the robocall ban is "constitutionally permissible and serves important governmental interests." EPIC explained that cell phone adoption has made "the harm caused by unwanted automated calls" greater than when the robocall ban was enacted in 1991. EPIC said that "without the autodialer ban, the assault of unwanted calls could make cell phones unusable." EPIC also argued that "a minor amendment to an otherwise constitutional law, passed decades after the original enactment, should not take down an act of Congress." EPIC frequently files amicus briefs on the TCPA, including in the related case, Gallion v. Charter Communications. (Jul. 6, 2020)

More top news »

EPIC Joins Coalition Urging FCC Not to Permit Unfettered Ringless Voicemails » (Oct. 5, 2021)

EPIC has joined a coalition of consumer groups led by the National Consumer Law Center to urge the FCC to reject a proposal that would make it legal for callers to drop voicemails directly into people's phones without their consent. The groups explained that allowing such “ringless voicemail” would clog consumers’ voicemail boxes with spam, scams, and debt collection notices. More than 90,000 consumers signed a petition urging the FCC to reject the proposal, and thousands of others, including small businesses and medical professionals, have filed comments with the FCC registering their concern with the harms presented by ringless voicemail. EPIC routinely participates in regulatory and legislative processes concerning robocalls and files amicus briefs in robocall cases.

EPIC & National Consumer Law Center Tell Court Not to Let Robocallers Off the Hook » (Feb. 2, 2021)

EPIC and the National Consumer Law Center have filed an amicus brief in Lindenbaum v. Realgy, LLC, urging the Sixth Circuit to reject immunity for illegal robocalls made between 2015 and 2020. The case follows the Supreme Court’s decision in Barr v. American Association of Political Consultants, in which the Court held that an exception added in 2015 to the decades-old robocall restriction was unconstitutional and must be severed from the broad robocall ban. As defendant in a separate robocall suit, Realgy argued that the Supreme Court’s decision meant that the broad robocall ban was unenforceable for the period that the unconstitutional exception was in effect, from 2015-2020. The district court agreed and granted Realgy’s motion to dismiss. EPIC and NCLC filed an amicus brief arguing that granting robocallers immunity “would reward those who made tens of billions of unwanted robocalls and deprive consumers of any remedy for the incessant invasion of their privacy.” EPIC regularly files amicus briefs supporting consumers in illegal robocall cases.

Supreme Court to Decide Scope of Robocall Ban » (Jul. 9, 2020)

Just days after upholding the federal robocall ban against a First Amendment challenge, the U.S. Supreme Court has agreed to decide the scope of the ban in a new case, Duguid v. Facebook. Following the D.C. Circuit’s invalidation of the FCC’s definition of an “autodialer”—the technology companies use to automatically dial vast numbers of consumers— federal appeals courts have split on how to interpret the term. Telemarketers argue that an autodialer must generate random or sequential numbers, while consumers and consumer groups like EPIC maintain that the law bans systems that automatically call numbers from lists. In Gadelhak v. AT&T, EPIC argued that adopting the telemarketers’ autodialer definition “would undermine the law's effectiveness by inviting easy circumvention and rendering the restriction obsolete.” EPIC routinely files amicus briefs in cases on the Telephone Consumer Protection Act.

Supreme Court Hears Oral Argument in Robocall Ban Case » (May. 6, 2020)

Earlier today, the U.S. Supreme Court heard oral argument in Barr v. American Association of Political Consultants. The argument was livestreamed, with EPIC staff providing commentary on Twitter. The case asks whether an exemption to the Telephone Consumer Protection Act, a law that prohibits unwanted robocalls, is constitutional, and, if not, whether the exemption should be severed or the whole law struck down. EPIC defended the TCPA in an amicus brief. EPIC said that the robocall ban is "constitutionally permissible and serves important governmental interests." EPIC explained that cell phone adoption has made "the harm caused by unwanted automated calls" greater than when the robocall ban was enacted in 1991. EPIC said that "without the autodialer ban, the assault of unwanted calls could make cell phones unusable." EPIC also argued that "a minor amendment to an otherwise constitutional law, passed decades after the original enactment, should not take down an act of Congress." EPIC frequently files amicus briefs on the TCPA, including in the related case, Gallion v. Charter Communications.

Supreme Court to Hold Oral Arguments by Teleconference » (Apr. 13, 2020)

The U.S. Supreme Court announced today that it will hold oral arguments by teleconference in light of the COVID-19 crisis, including two cases in which EPIC filed amicus briefs. "The Court anticipates providing a live audio feed of these arguments to news media," the Court said in a statement. It marks the first time that the Supreme Court has held arguments remotely or made a live broadcast available. The cases to be argued next month include Trump v. Vance, in which EPIC urged the Supreme Court to allow the release of President Trump's tax returns to a grand jury, and Barr v. American Association of Political Consultants, in which EPIC defended the Telephone Consumer Protection Act as a check against unwanted robocalls.

EPIC, Consumer Groups Call for Review of Robocall Ruling » (Mar. 12, 2020)

EPIC joined the National Consumer Law Center and other consumer groups in an amicus brief supporting review of recent decision that limits consumer robocall protections. In Gadelhak v. AT&T Services, the Seventh Circuit concluded that consumers who receive an automated text message can sue under the federal anti-robocall law, but only if the autodialer has a random number generator. The decision deepened a split among federal appeals courts over the scope of federal robocall protections. EPIC and NCLC also filed an amicus brief during the court's original consideration of the case. The EPIC brief explained that allowing telemarketers to auto-dial consumers "would undermine the law's effectiveness by inviting easy circumvention and rendering the restriction obsolete." EPIC routinely files amicus briefs on consumer privacy issues, including several amicus briefs on the TCPA.

EPIC to Supreme Court: Robocall Ban is Constitutional » (Mar. 2, 2020)

In an amicus brief for the U.S. Supreme Court, EPIC today defended the Telephone Consumer Protection Act, a law that prohibits unwanted robocalls. EPIC said that the robocall ban is "constitutionally permissible and serves important governmental interests." EPIC explained in Barr v. American Association of Political Consultants that "the harm caused by unwanted automated calls" is more acute than when the robocall ban was enacted in 1991. EPIC said "without the autodialer ban, the assault of unwanted calls could make cell phones unusable." EPIC also argued that "a minor amendment to an otherwise constitutional law, passed decades after the original enactment, should not take down an act of Congress." Senator Markey, Representative Eshoo, and more than a dozen members of Congress also filed an amicus brief in support of the consumer privacy law. EPIC frequently files amicus briefs on the TCPA, including in the related case, Gallion v. Charter Communications.

Federal Appeals Court Rules Consumers Can Sue for Automated Texts—But Only If Calls Are Random » (Feb. 19, 2020)

The Seventh Circuit has concluded that consumers who receive an automated text message can sue under the federal anti-robocall law, but only if the autodialer has a random number generator. The decision in Gadelhak v. AT&T Services deepens a split among federal appeals courts over the scope of federal robocall protections. EPIC and the National Consumer Law Center filed an amicus brief in the case, arguing that an autodialer need only dial numbers from a list, such as a customer contact database. EPIC and the NCLC explained that allowing telemarketers to robocall consumers from a list "would undermine the law's effectiveness by inviting easy circumvention and rendering the restriction obsolete." The EPIC routinely files amicus briefs on consumer privacy issues, including several amicus briefs on the TCPA.

Supreme Court to Review Constitutionality of Federal Robocall Ban » (Jan. 11, 2020)

The Supreme Court has aqreed to hear a challenge to the constitutionality of the Telephone Consumer Protection Act, a federal law that prohibits unwanted robocalls. The law generally restricts the use of autodialers, but in 2015 Congress created an exception for robocalls to collect debts guaranteed by the federal government. Several groups have since challenged the law on First Amendment grounds, arguing that the TCPA discriminates against particular speakers. The Court will now consider the issue in Barr v. American Association of Political Consultants. EPIC filed an amicus brief in Gallion v. Charter Communications, a related case, arguing that “these challenges represent a systematic effort by companies to undermine the purpose of the TCPA and to inundates consumers with unwanted calls.” EPIC routinely files amicus briefs on consumer privacy issues, including several amicus briefs on the TCPA.

House Passes Bill to Combat Robocalls » (Jul. 25, 2019)

In a 429-3 vote, the House passed a bill to combat the onslaught of robocalls. The Stopping Bad Robocalls Act would increase the fines for illegal robocalls, require phone companies to block robocalls by default, require more businesses to obtain consumer consent before calling, and much more. The Act comes two months after the Senate passed a similar bill—the Traced Act—with near unanimous support. Many criticized the Senate's bill for not going far enough. EPIC joined a coalition of consumer groups that urged members of Congress to support the House bill. EPIC has long advocated for stronger regulations surrounding robocalls. EPIC provided expert analysis to Congress, submitted numerous comments, and filed multiple amicus briefs emphasizing the need to limit robocalls.

Ninth Circuit Strikes Down Debt-Collection Exception to Robocall Ban » (Jul. 9, 2019)

The Ninth Circuit has again found that the Telephone Consumer Protection Act limits the ability of government debt collectors to make robocalls. The law prohibits automated calls to cell phones, except in emergencies or with the consent of the called party. But in 2015 Congress created an exception for calls made to collect debts guaranteed by the federal government. In Duguid v. Facebook, the Ninth Circuit found that the exception violated the First Amendment because it preference debt collectors over other companies that could might use robocall technology. The outcome is favorable for consumer privacy. EPIC filed a "friend of the court" brief in Gallion v. Charter Communications, a similar case in the Ninth Circuit, arguing that "the TCPA prohibitions are needed now more than ever." EPIC routinely files amicus briefs on consumer privacy issues, including several amicus briefs on the TCPA.

EPIC, NCLC Urge Federal Appeals Court to Limit Robocalls » (Jul. 9, 2019)

EPIC and the National Consumer Law Center have filed an amicus brief in a case concerning the scope of the federal law, the Telephone Consumer Protection Act, that protects consumers against robocalls. In Gadelhak v. AT&T Services, EPIC and NCLC argued that list-based systems are included among the law's definition of "autodialers." To do otherwise, the brief explained, "would undermine the law's effectiveness by inviting easy circumvention and rendering the restriction obsolete." EPIC and NCLC further explained that the "mass texting from a list, such as the system used by AT&T in this case, is precisely the type of technology the TCPA sought to restrict." The amici warned that a narrow interpretation of the law "would accelerate the rising levels of robocalls and texts." EPIC routinely files amicus briefs on consumer privacy issues, including several amicus briefs on the TCPA.

Congress, FTC Take Action Against Robocallers » (Jun. 27, 2019)

A House subcommittee voted unanimously to advance a wide-ranging bill intended to crack down on robocalls. The Stopping Bad Robocalls Act (H.R. 3375) would enroll customers in free call-blocking programs and take more aggressive rulemaking steps to ensure people only get calls they ask to receive. The FTC also announced a partnership with state enforcers--"Operation Call it Quits"—to crack down on illegal robocalls. The initiative includes 94 actions targeting robocallers responsible for more than one billion calls. EPIC has worked to ensure that telephone users are protected from invasive business practices through agency comments and amicus briefs in cases such as ACA International and Gallion v. Charter Communications.

Supreme Court Sidesteps Merits in Junk Fax Case » (Jun. 20, 2019)

The Supreme Court today directed a lower court to reexamine PDR Network v. Carlton & Harris Chiropractic, a case which concerns a company's efforts to disregard an FCC rule about junk faxes. The Court told the Fourth Circuit to resolve "preliminary" questions about the legal effect of the FCC rule and the company's ability to challenge the rule through the agency process. EPIC filed an amicus brief in the case. EPIC explained that permitting companies to challenge FCC rules outside the process Congress established "will exclude the voices of consumers" in agency decision-making. EPIC also explained that the company's efforts to sidestep agency rules will benefit those "who have resources to attack FCC rules." EPIC and other consumer organizations routinely provide comments to federal agencies through the federal agency rule making process. EPIC also contributed to the development of the robocall and junk fax laws. EPIC has since worked to ensure that telephone users are protected from invasive business practices through agency comments and amicus briefs in cases such as ACA International and Gallion v. Charter Communications.

FCC Affirms Robocall Blocking By Default to Protect Consumers » (Jun. 7, 2019)

The FCC voted to confirm that voice service providers may aggressively block unwanted robocalls before they reach consumers. The Commission stated: "While many phone companies now offer their customers call blocking tools on an opt-in basis, the Declaratory Ruling clarifies that they can provide them as the default, thus allowing them to protect more consumers from unwanted robocalls and making it more cost-effective to implement call blocking programs." EPIC has long advocated for robust telephone privacy protections. Last week, EPIC submitted comments to the FCC recommending that the agency (1) require phone providers to proactively block calls from numbers that are unassigned, unallocated, or invalid; (2) prohibit spoofing if there is an intent to defraud or cause harm; and (3) encourage the use of call authentication technology that safeguards caller anonymity. EPIC filed amicus briefs earlier this year and in 2015 that strengthened consumer protections for robocalls.

Senate Passes Anti-Robocall Act 97-1 » (May. 23, 2019)

The Senate overwhelmingly passed the Telephone Robocall Abuse Criminal Enforcement and Deterrence (TRACED) Act, sponsored by Senator John Thune (R-S.D.) and Senator Ed Markey (D-Mass.). The Act would give regulators more time to find scammers, increases civil penalties, promotes call authentication and blocking techniques, and brings together federal agencies and state attorneys general to coordinate prosecution of robocallers. EPIC has long advocated for robust telephone privacy protections and regularly files amicus briefs and comments in support of stronger consumer protections against robocalls.

Appeals Court Strikes Down Debt Collector Exception to Robocall Ban » (Apr. 25, 2019)

A federal appeals court ruled today that an amendment to the federal robocall ban is unconstitutional. The Telephone Consumer Protection Act prohibits automated calls to cell phones, except in emergencies or with the consent of the called party. But in 2015 Congress created an exception for calls made to collect debts guaranteed by the federal government. The court in AAPC v. FCC found that the debt-collection exemption "undercuts" the privacy protections in the law. So the court found the exception unconstitutional and struck it from the law. EPIC filed a "friend of the court" brief in Gallion v. Charter Communications, a similar case in the Ninth Circuit, arguing that "the TCPA prohibitions are needed now more than ever." EPIC has testified in support of the TCPA and has submitted extensive comments and amicus briefs on the consumer privacy law.

Bill to Limit Robocalls Moves Forward in Senate » (Apr. 3, 2019)

The Senate Commerce Committee today approved a bill to strengthen the FCC's ability to prevent robocalls. The Telephone Robocall Abuse Criminal Enforcement and Deterrence or TRACED Act, enhances the FCC's authority to issue fines against robocallers, extends the statute of limitations, and promotes call authentication and blocking adoption. EPIC has long advocated for robust telephone privacy protections. Last week, EPIC submitted comments to the FCC recommending that the agency (1) require phone providers to block calls from numbers that are unassigned, unallocated, or invalid; (2) prohibit spoofing if there is an intent to defraud or cause harm; and (3) encourage the use of call authentication technology that safeguards caller anonymity. EPIC filed amicus briefs earlier this year and in 2015 that strengthened consumer protections for robocalls.

EPIC Urges Supreme Court to Preserve Public Voice in Robocall and Junk Fax Law » (Feb. 14, 2019)

EPIC has filed an amicus brief urging the Supreme Court to safeguard FCC rules that protect the public from robocalls and junk faxes. The case, PDR Network v. Carlton & Harris Chiropractic, concerns a company's efforts to disregard an FCC rule about junk faxes. EPIC explained that permitting companies to avoid FCC rules "will exclude the voices of consumers" in agency decision making. EPIC also explained that the company's efforts to sidestep agency rules will benefit those "who have resources to attack FCC rules." EPIC contributed to the development of the robocall and junk fax laws. EPIC has since worked to ensure that telephone users are protected from invasive practices through agency comments and amicus briefs in cases such as ACA International and Gallion v. Charter Communications.

EPIC Supports Constitutionality of "Robocall" Law » (Nov. 13, 2018)

EPIC has filed a "friend of the court" brief in a case concerning the constitutionality of the Telephone Consumer Protection Act, the law the prohibits unwanted "robocalls." In Gallion v. Charter Communications, EPIC argued that "the TCPA prohibitions are needed now more than ever," citing the intrusiveness of marketing calls directed toward cell phones. EPIC also said the TCPA "protects important consumer privacy interests." EPIC testified in support of the TCPA and has submitted extensive comments and amicus briefs on the consumer privacy law.

EPIC Redials FCC, Urges Agency to Block Unlawful Robocalls » (Sep. 25, 2018)

In comments to the FCC, EPIC has renewed its call to the agency to block unlawful robocalls. The FCC proposed a rule that would allow phone companies to block calls from numbers they know are invalid, such as numbers that have not been assigned to a subscriber. EPIC recommended that the FCC (1) require phone providers to proactively block calls from numbers that are unassigned, unallocated, or invalid; (2) prohibit spoofing if there is an intent to defraud or cause harm; and (3) encourage the use of call authentication technology that safeguards caller anonymity. EPIC previously filed comments in when the FCC proposed the rule, and has long advocated for robust telephone privacy protections. EPIC filed an amicus brief in 2015 that strengthened consumer protections.

EPIC Advises FCC on Robocalls Regulation » (Jun. 29, 2018)

EPIC advised the FCC on how to interpret the Telephone Communications Protection Act to best protect consumers in light of the recent decision in ACA Int'l v. FCC. EPIC filed a friend of the court brief in that case arguing that consumers could revoke consent by any "reasonable means." The court agreed but vacated other aspects of the rule. Many industry groups urged the Commission to make a rule that if "any" human intervention is involved in the dialing or sorting of the list of numbers a calling system would not be considered an "automatic telephone dialing system." EPIC opposed that recommendation, explaining that such a definition would allow autodialers to use deceptive tactics to evade regulation. EPIC contributed to the development of the Telephone Communications Protection Act and regularly submits comments to the FCC.

EPIC Advises FCC on Robocalls Regulation » (Jun. 13, 2018)

EPIC advised the FCC on how to interpret the Telephone Communications Protection Act to best protect consumers in light of a recent decision in ACA Int'l v. FCC. EPIC filed a friend of the court brief in that case arguing that consumers could revoke consent by any "reasonable means." The court agreed but vacated other aspects of the rule. EPIC's comments argue that the FCC should require callers to meet three conditions to simplify the revocation of consent: (1) inform consumers of their right to revoke, (2) provide a simple means of revocation, and (3) comply in a timely manner. EPIC contributed to the development of the Telephone Communications Protection Act and regularly submits comments to the FCC.

EPIC Supports Additional Regulation of Robocalls » (Apr. 17, 2018)

In advance of a hearing on "Abusive Robocalls and How We Can Stop Them" EPIC recommended reforms that would combat fraud while protecting privacy. EPIC supports regulations that would (1) allow phone providers to proactively block numbers that are unassigned, unallocated, or invalid; (2) block invalid numbers without requiring consumer consent; (3) provide strong security measures for any database of blocked numbers; and (4) prohibit spoofing with the intent to defraud or cause harm. EPIC played a leading role in the creation of the Telephone Consumer Protection Act and continues to defend the Act.

D.C. Circuit Affirms "Consent" Protection in FCC Robocall Rule » (Mar. 16, 2018)

A federal appeals court ruled today in a closely watched case concerning robocalls. The rule under review in ACA International v. FCC concerned the FCC's regulations for the Telephone Consumer Protection Act. EPIC filed a friend of the court brief in the case in support of the FCC regulations. EPIC said that companies "seeking to engage in privacy-invading business practices" bear "the burden of proving consent." The court agreed that consumers could withdraw consent by all "reasonable means." However, the court vacated other aspects of the rule, including the definition of automated telephone dialing system and proposed procedures for calls to reassigned numbers.

DC Appeals Court Hears Arguments in Telemarketing Privacy Case » (Oct. 20, 2016)

The federal appeals court in Washington, D.C. heard oral arguments Wednesday in a case with major implications for telephone privacy. The suit, ACA International v. FCC, was brought against the Federal Communications Commission by telemarketing companies and others challenging rules adopted under the Telephone Consumer Protection Act that prohibit automated calls made to cell phones without their consent. EPIC and six consumer privacy groups filed an amicus brief in the case, stressing the importance of privacy protections for cell phone users. EPIC also challenged a claim made by the telemarketers that "37 million" numbers were reassigned each year, making it difficult, the companies claimed, to comply with the privacy law. During the argument, one of the judges pressed the telemarketers' attorney on the point (audio), citing research in the EPIC amicus brief. EPIC frequently participates as amicus curiae in cases that raises novel privacy issues.

EPIC, Consumer Coalition Tells FCC to Limit Health Care Robocalls » (Oct. 19, 2016)

EPIC and a coalition of consumer privacy advocates have urged the Federal Communications Commission to reject a request by health insurance companies to make unlimited health-related robocalls to consumers under the Telephone Consumer Protection Act. The insurance companies asked the FCC to amend the TCPA so that once a consumer provides her phone number to her doctor, she has "consented" to receiving telemarketing calls from other health care providers on anything medically related. The coalition comments, led by the National Consumer Law Center, urge the FCC to limit the scope of consumers' consent to medical robocalls by exclude telemarketing calls and allowing only calls related to the original reason the consumer provided her phone number. EPIC supports robust telephone privacy protections and filed an amicus brief in support of the FCC's 2015 order that strengthened consumer protections under the TCPA.

EPIC Advises Congress on Modernizing Telemarketing Rules to Protect Consumers » (Sep. 21, 2016)

EPIC has sent a letter to the House Energy and Commerce Committee in advance of the hearing on “Modernizing the Telephone Consumer Protection Act.” The telemarketing law bars telemarketers and robocallers from contacting consumers by phone fax, or text without prior consent. EPIC urged the Committee to ensure that an update to the law “protects consumers from unwanted commercial communications.” EPIC said legal rights should be “robust, enforceable and minimally burdensome for consumers." Earlier this year, EPIC filed an amicus brief in support of strengthening TCPA protections for consumers. EPIC has also testified before Congress about the telemarketing law and submitted many comments concerning its implementation.

EPIC, Consumer Coalition Oppose Robocalls by Government Contractors » (Jul. 26, 2016)

EPIC and a coalition of consumer groups have petitioned the FCC to reverse its recent decision to exempt federal contractors from restrictions on telemarketing and robocalls. The FCC incorrectly determined that the Telephone Consumer Protection Act (TCPA) “does not apply to calls made by or on behalf of the federal government in the conduct of official government business.” The petition, led by the National Consumer Law Center, warns of significant increases in unwanted robocalls from government contractors that consumers would be powerless to stop. EPIC supports robust telephone privacy protections and filed an amicus brief in support of the FCC’s 2015 order that strengthened consumer protections under the TCPA.

Senate Examines "Do Not Call" Law » (May. 19, 2016)

The Senate Commerce Committee held a hearing yesterday on the Telephone Consumer Protection Act. The "TCPA" bars telemarketers and robocallers from contacting consumers by phone or fax without prior express consent. In January, EPIC filed an amicus brief to provide greater TCPA protections for consumers. EPIC said that widespread use of cellphones “has amplified the nuisance and privacy invasion caused by unwanted calls and text messages.” EPIC has testified before Congress about the TCPA and submitted many comments concerning the implementation of the consumer privacy law.

EPIC and Consumer Privacy Groups File Brief Supporting FCC in Telephone Privacy Case » (Jan. 25, 2016)

EPIC and six consumer privacy organizations have filed a "friend-of-the-court" brief in support of the Federal Communications Commission in ACA International v. FCC. The case was brought against the FCC by industry groups charged with violating the Telephone Consumer Protection Act. The FCC had made clear that companies cannot make automated or prerecorded calls to consumers without their consent. EPIC argued in its brief that widespread adoption of cell phones "has amplified the nuisance and privacy invasion caused by unwanted calls and text messages." EPIC and the consumer organizations urged the federal court to uphold the FCC order safeguarding consumers.

Supreme Court Rules Settlement Offers Can't Moot Consumer Class Actions » (Jan. 20, 2016)

The Supreme Court has ruled that a company cannot terminate class action litigation by strategically making a settlement offer of full relief to individual plaintiffs. The case, Campbell-Ewald Co. v. Gomez, involved a consumer who refused to drop his Telephone Consumer Protection Act lawsuit in exchange for such an offer. The defendant company argued that the offer, which exceeded the statutory damages under the TCPA, mooted his case. The Justices disagreed, ruling 6-3 that "an unaccepted settlement offer has no force. Like other unaccepted contract offers, it creates no lasting right or obligation." EPIC routinely works to protect consumer privacy interests in class action settlements.

FCC Implements Strict Rules to Halt Unwanted Telemarketing » (Jun. 19, 2015)

The Federal Communications Commission has adopted new rules that impose strict limits on telemarketing practices. Under the rules, consumers can halt unwanted messages by telling companies to stop calling. The rules also allow phone companies to offer call-blocking services to screen out automated telemarketing calls. In 2014, the FCC received more than 215,000 complaints from consumers regarding unwanted telephone solicitations. EPIC has previously urged the Commission to require express consumer consent for telemarketing calls and to protect wireless subscribers from telemarketing. EPIC President Marc Rotenberg helped establish the Telephone Consumer Protection Act.

Senators Urges FCC to Protect Consumers Against Unsolicited Calls » (Jun. 9, 2015)

Almost a dozen senators have urged the Federal Communications Commission to uphold consumer privacy protections within the Telephone Consumer Protection Act. Next week the Commission will vote on two dozen proposals seeking to relax enforcement of the Act. According to Senator Markey and others, the FCC's recommendation to permit unsolicited texts and calls without consumer consent "would threaten privacy and result in an increase in disruptive and annoying calls for American consumers." The Commission will vote on the proposals during an Open Meeting on June 18, 2015. EPIC supported enactment of the TCPA and has advocated for strong enforcement.

FCC Issues Stronger Telemarketing Rules to Protect Consumers » (Jun. 12, 2012)

The Federal Communications Commission's final rule amending the Telephone Consumer Protection Act of 1991 (TCPA) regulations is now in effect. The rule requires "(1)prior express written consent for all autodialed or prerecorded telemarketing calls to wireless numbers and residential lines; (2) allow[s] consumers to opt out of future robocalls during a robocall; (3) limit[s] permissible abandoned calls on a per-calling campaign basis, in order to discourage intrusive calling campaigns; and (4) exempts prerecorded calls to residential lines made by health care-related entities governed by the Health Insurance Portability and Accountability Act of 1996." EPIC has previously urged the Commission to require express consumer consent for telemarketing calls and to protect wireless subscribers from telemarketing. For more information, see EPIC: Telemarketing and the Telephone Consumer Protection Act (TCPA).

Summary

This case concerns the constitutionality of an exemption to the autodialer ban in the Telephone Consumer Protection Act (“TCPA”). The TCPA prohibits use of an “automated telephone dialing system” to call an individual’s phone without prior authorization. Since its enactment in 1991, courts have consistently held that the TCPA’s autodialer rules are constitutional. But several groups have recently challenged the constitutionality of an exemption to the autodialer ban that Congress passed in 2015. The 2015 TCPA Amendment permits robocalls made by government debt collectors.

In this case, a group of political consultants and polling organizations challenged the law on First Amendment grounds. The district court held that the TCPA, as amended, is constitutional under the First Amendment despite the new content-based exemption. The challengers appealed to the Fourth Circuit, which held that the amendment was not constitutional and should be severed from the TCPA. The United States filed a Petition for a Writ of Certiorari, and the Supreme Court agreed to consider "Whether the government-debt exemption to the Telephone Consumer Protection Act of 1991’s automated-call restriction violates the First Amendment, and whether the proper remedy for any constitutional violation is to sever the exemption from the remainder of the statute."

EPIC filed an amicus brief in a similar case in the Ninth Circuit, Gallion v. Charter Communications, which agreed with the Fourth Circuit and severed the 2015 exemption from the autodialer ban.

Background

Legal Background

In 1991, Congress enacted the TCPA to protect individuals from unwanted calls and faxes. Among the law’s prohibitions is a ban on using “any automated telephone dialing system.” The autodialer ban originally contained two exemptions: (1) calls made “for emergency purposes,” and (2) calls made with “the prior express consent of the called party.” The law also gave the FCC authority to promulgate additional exemptions. Calls made by the federal government are also not barred.

In 2015, Congress added a third statutory exemption to the autodialer ban for calls “made solely to collect a debt owed to or guaranteed by the United States.”

Restrictions on free speech are subject to different levels of scrutiny depending on the type or aspect of speech they target. Restrictions targeting commercial speech have historically had to meet a lower standard than restrictions on "core" speech on issues of political or societal interest. More recently, the U.S. Supreme Court has applied what is called "strict scrutiny"—the highest level of constitutional scrutiny—even to commercial speech that discriminates between speakers or the content of a communication, such as in Sorrell v. IMS Health. This standard requires the restriction to be narrowly tailored to a compelling government interest—that is, the government must be able to point to some important government goal, such as protecting consumers from the privacy invasion of robocalls, and the restriction must actually serve that purpose by, e.g., not exempting acts that undermine the restriction's purpose, or banning acts that do not further the purpose. Additionally, the Government must not be able to effectively accomplish its goal with an alternative rule that restricts less speech. Restrictions that do not distinguish between speakers—referred to as "content-neutral" restrictions—are subject to a lower standard than content-based restrictions. Generally, content-neutral restrictions on the time, place, and manner in which speech can occur are allowed as long as there are adequate alternative means of expression available.

Courts have consistently held that the pre-amended autodialer prohibition is a content-neutral time, place, and manner restriction that comports with the First Amendment.

Procedural History

District Court for the Eastern District of North Carolina

A group of political and polling organizations that wish to use autodialer technology, led by the American Association of Political Consultants, sued the Government to challenge the constitutionality of the autodialer ban. The groups claimed that the ban was a content-based restriction on speech, warranting the court's highest scrutiny, because the government debt exemption and FCC regulatory exemptions favor commercial speech over core political speech. The Government countered that the government debt exemption focused on the relationship between caller and recipient, not on the content of the call, and so should not be subject to strict scrutiny. Alternatively, the Government argued that the exemption met the highest standard because it was narrowly tailored to a compelling government purpose: facilitating repayment of millions of dollars in debts to the federal government.

The court agreed with the Government that the government debt exemption was constitutional under strict scrutiny. The court determined that the Government had a compelling interest in exempting calls to collect government-backed debt, and that the exemption did not undermine the privacy interests the TCPA was meant to protect. The court further found that jurisdictional barriers prevented it from considering the constitutionality of the FCC exemptions, and that the general delegation from Congress to make exemptions was “not facially or inherently content-based.” Finally, the court concluded that the autodialer ban did not needlessly encompass more speech than necessary, and that less restrictive means, such as time-of-day limitations, mandatory disclosures, and do-not-call lists would not be as effective in protecting privacy.

U.S. Court of Appeals for the Fourth Circuit

On appeal, the political groups argued that the government debt exemption does not further a compelling government interest, and even if it did, the exemption did not do so by the least restrictive means. The political groups also argued that severance of the exemption—that is, striking down the exemption and leaving the rest of the ban in place—was not a permissible remedy because an unconstitutional restriction on speech could not be fixed by restricting even more speech. The Government again argued that the exemption was content-neutral, and otherwise passed strict scrutiny. If the court were to find the exemption unconstitutional, the Government advocated for severance because the autodialer ban had been in effect long before the exemption was added.

The Fourth Circuit agreed with the district court that the government debt exemption was content-based. However, the court found that the exemption did not pass strict scrutiny, and severed the provision from the statute. The court concluded that the exemption was “fatally underinclusive” for two reasons: (1) the exemption “subverts the privacy protections underlying the ban” by authorizing potentially millions of intrusive calls, and (2) calls to collect a debt are “among the most intrusive, disruptive, and complained of phone calls.” As for whether to sever the exemption, the court found that "the explicit directives of the Supreme Court and Congress strongly support a severance of the debt-collection exemption from the automated call ban" and "the ban can operate effectively in the absence of the debt-collection exemption, which is clearly an outlier among the statutory exemptions."

U.S. Supreme Court

On November 14, 2019, the U.S. Solicitor General filed a Petition for a Writ of Certiorari in the U.S. Supreme Court, requesting that the Court review the Fourth Circuit's opinion and address the question of "Whether the government-debt exemption to the Telephone Consumer Protection Act of 1991’s automated-call restriction violates the First Amendment, and whether the proper remedy for any constitutional violation is to sever the exemption from the remainder of the statute." The Court granted certiorari on January 10, 2020.

EPIC's Interest

EPIC has a general interest in defending privacy statutes from First Amendment attacks, as well as a specific interest in preserving the TCPA’s protections.

First Amendment Attacks on Privacy Statutes

As a major advocate of comprehensive federal privacy legislation, EPIC has an important role to play in ensuring that the First Amendment cannot be used as a weapon against privacy statutes.

EPIC has previously defended a privacy statute from a First Amendment challenge in the U.S. Supreme Court. Sorrell v. IMS Health also concerned a purportedly underinclusive privacy statute. The law prohibited pharmacies from providing prescriber-identifying data to third parties that would use the information to market brand-name drugs to health care providers. EPIC submitted an amicus brief supporting the Government's compelling interest by explaining the importance of medical privacy and the inadequacy of deidentification techniques data mining companies use. The Court ultimately found that the narrow target of the speech restriction, and the many exemptions, rendered the privacy provision underinclusive, and that a more privacy-protective statute might have withstood strict scrutiny.

The TCPA

EPIC has a strong interest in upholding the TCPA’s privacy protections. EPIC contributed to the formation of the TCPA, and has since worked to ensure that telephone users are protected from invasive calling practices.

EPIC has filed many “friend of the court” briefs in important TCPA cases, including a case similar to the one now before the Court. In Gallion v. Charter Communications, EPIC argued that the TCPA’s protections were needed now more than ever, citing to empirical evidence that the robocall scourge has only gotten worse since the introduction of cell phones. EPIC urged that, even if the government debt exemption was unconstitutional, the Ninth Circuit should preserve the general autodialer ban.

Additionally, in Gadelhak v. AT&T Services, EPIC urged the Seventh Circuit to recognize that the TCPA prohibits autodialed calls made from a list of numbers, not just calls made to random numbers. In PDR Network v. Carlton & Harris Chiropractic, EPIC urged the Supreme Court not to give TCPA defendants the right to challenge FCC rules outside the agency process and the appeal procedure Congress established. In ACA International v. FCC, EPIC and other consumer privacy organizations urged the FCC to protect consumers from unwanted and invasive robocalls made using an autodialer and prerecorded voice, in direct violation of the TCPA. Further, EPIC argued that companies, not consumers, should bear the burden of complying with the TCPA because the TCPA was enacted as a consumer-centric statute.

EPIC has also testified in Congress and submitted statements in support of the TCPA’s protections. In addition, EPIC has submitted numerous comments to the FCC and FTC concerning the implementation of the TCPA. For example, in June 2018, EPIC submitted comments to the FCC regarding the Commission’s proceedings after ACA International. In the comment, EPIC urged the FCC to define “called party” under the TCPA. EPIC also encouraged the FCC to establish a three-pronged way for callers to “facilitate the revocation of consent by called parties:” (1) let parties know they have the right to revoke consent, (2) give consumers an easy way to revoke consent, (3) quickly follow through with the revocation of consent.