Is TCPA unconstitutional?
Yes, at least for now, according to two courts’ opinions! Supreme court ruling, Barr v. American Association of Political Consultants, of July 6, 2020, found TCPA and its restrictions on using auto-dialers to call cell phones without consent as content-specific under the bounty of constitutional law and first amendment doctrine.
The court in 2015 amended TCPA, which permitted automated calls without consent to collect debts owed to the government as content-specific. Thus under such a content-specific statute, robocalls that say, “Please pay your government debt” are legal, but robocalls that say, “Please donate to our political campaign” are illegal. So with a statute that is content-specific, you implement a restriction that is controversial. You can’t apply such a contradictory restriction to speech; it is unconstitutional. However, the court left intact the TCPA’s ban prohibiting automated calls to cell phones without consent by severing the provision out of the statute, so TCPA lives on for now.
In these two district cases, Creasy v. Charter communications and Lindenbaum v. Realgy, Inc., the courts said that until the supreme court severs off the provision of leaving intact the TCPA’s ban prohibiting automated calls to cell phones without consent and makes TCPA content-neutral again, the whole TCPA is unconstitutional. This can potentially wipe out TCPA litigations and class actions, for all the calls made prior to July 6, 2020, back to 2015. It can wipe out trillions of dollars in liabilities of defendants for the past five years. Although these are only two district courts, no other courts are disagreeing with this decision. It will be an interesting development that we can anticipate in 2021.