If at first you don’t succeed, try and try again appears to be the legal strategy of a company accused of violating the Telephone Consumer Protection Act by making calls to an individual’s phone using an pre-recorded or artificial voice without the individual’s permission. The company is, for the second time, attempting to argue that the TCPA is unconstitutional because of an exemption allowing debt collectors to use an automated telephone dialing system when collecting debts owed to the federal government, but, for the second time, a District Court judge has shot down that argument.
A copy of the ruling in Perrong v. Liberty Power Corp. can be accessed by clicking here. Astute readers will remember an article yesterday about a similar ruling in another case from Massachusetts involving Liberty Power.
A pair of appeals courts have already ruled that the debt collection exemption in the TCPA is unconstitutional, determining that the exemption is a content-based restriction on free speech. Congress enacted the exemption in 2015 as part of the Bipartisan Budget Act, as a means of allowing collectors who were essentially working on behalf of the federal government to collect student loans and mortgages, for example, to contact individuals on their cell phones using an automated telephone dialing system.
Like the Massachusetts case, the defendant attempted to argue that the TCPA is unconstitutional which the court agreed with, but only as far as it applies to the exemption for debt collectors who are collecting debt owed to the federal government. That exemption can be severed from the rest of the TCPA to keep the remaining components of the law on the books, Judge Maryellen Noreika of the District Court for the District of Delaware ruled.
“The Court is not persuaded that removing this amendment would somehow render unconstitutional a statute that had been repeatedly upheld as constitutional in its previous form,” Judge Noreika wrote. “Thus, although the Court finds that the TCPA is unconstitutional due to the debt-collection exemption, it also finds that the exemption can be severed.”
