Another district court — this time in Florida — has granted a motion to dismiss a Telephone Consumer Protection Act case by ruling that the statute was unconstitutional between 2015 and 2020, joining other courts in Louisiana and Ohio in determining that it lacked subject matter jurisdiction to determine whether calls made to an individual’s cell phone using an automated telephone dialing system were legal.
A copy of the ruling in the case of Hussain v. Sullivan Buick-Cadillac-GMS Truck, Inc., et al can be accessed by clicking here.
In 2015, Congress amended the TCPA to allow the use of ATDS’s when contacting individuals on their cell phones — without first obtaining prior consent — to collect on debts that were owed to, or guaranteed by, the federal government. That exemption was struck down by the Supreme Court earlier this year in Barr v. American Association of Political Consultants. But now, three courts have ruled that the Supreme Court’s decision in Barr renders the entire TCPA unconstitutional during that five-year period.
In this case, the plaintiff allegedly received 15 calls and voicemails with pre-recorded messages on her cell phone. The messages were left by a marketing firm acting on behalf of its client, a car dealership in Ocala, Fla.
Following the rulings in Creasy v. Charter Communications and Lindenbaum v. Realgy, LLC, Judge James Moody of the District Court for the Middle District of Florida, Ocala Division, agreed that when the calls were made. “the statute could not be enforced as written and a later amendment to a statute cannot be retroactively applied.”
The 2015 amendment to the TCPA “changed an otherwise valid statute to an unconstitutional content-based restriction,” Judge Moody wrote. “Thus, at the time Defendants engaged in the speech at issue in this case, Defendants were subject to an unconstitutional content-based restriction. Because the Court is without authority to enforce an unconstitutional statute, the Court lacks subject matter jurisdiction over this action.”
