The questions and situations that judges must decide on a daily basis can be fascinating. Case in point — when the Supreme Court ruled that an exemption which had existed for five years in the Telephone Consumer Protection Act that allowed the use of automated telephone dialing systems when contacting individuals on their cell phones without obtaining prior consent to collect on debts that were owed to, or guaranteed by, the federal government — did that mean that the TCPA as a whole was unenforceable? Or just the parts that were deemed to be unconstitutional?
The Sixth Circuit Court of Appeals yesterday ruled that just the parts of the TCPA that were deemed to be unconstitutional are applied retroactively, and that the rest of the law stands as written, in reversing a lower court’s ruling that had granted a motion to dismiss on the basis that the TCPA itself was unconstitutional for the five years in which the government-backed debt collection exemption existed.
A copy of the ruling in the case of Lindenbaum v. Realgy can be accessed by clicking here.
The plaintiff alleged she received two pre-recorded calls, one to her cell phone and one to her landline, without providing her consent to receive such calls. The call to her cell phone was made before she filed her lawsuit against the defendant; the call to her landline was made after the suit was filed.
After the plaintiff filed her suit, the Supreme Court issued its ruling in Barr v. American Association of Political Consultants, in which the Court struck down the government-backed debt collection exemption that was added to the TCPA in 2015.
The issue then became whether the exemption invalidated the entire TCPA or just the part that was deemed to be unconstitutional. The Sixth Circuit yesterday said that “Courts do not rewrite, amend, or strike down statutes. We only ‘say what the law is.’ ”
After dealing with the issue of severing the exemption from the rest of the TCPA, the panel turned to the First Amendment implications of the exemption.
“Whether a debt collector had fair notice that it faced punishment for making robocalls turns on whether it reasonably believed that the statute expressly permitted its conduct,” the court wrote in its ruling. “That, in turn, will likely depend in part on whether the debt collector used robocalls to collect government debt or non-government debt. But applying the speech-neutral fair-notice defense in the speech context does not transform it into a speech restriction.”
