Last week, the United States Supreme Court ("SCOTUS") issued a ruling examining the Telephone Consumer Protection Act ("TCPA") exception for robocalls made to collect government debt. The far-reaching effect of the ruling will be to expand the law's restrictions on robocalls.
What are the implications of the SCOTUS ruling on robocalls?
The TCPA's constitutionality was challenged by a political consultancy association in search of a way to make unsolicited political robocalls without obtaining consent from called parties. Its argument in challenging the statute was that: (1) the exception from liability for calls placed solely for purposes of collecting a debt owed to or guaranteed by the government violates the First Amendment; and (2) because the exception is unconstitutional, the entire statute must be invalidated. Readers will recall that in 2015, Congress amended the TCPA and, among other measures, carved out a large exception for calls seeking to collect on government debt. As Justice Gorsuch noted, "[t]he government backs millions and millions of loans - student loans, home mortgages, veterans' loans, farm loans, business loans." The exception was challenged on the grounds that the statute infringes free speech rights by permitting robocalling for one category of calls (government debt-related calls) but prohibiting all others. SCOTUS agreed, finding that "[b]ecause the law favors speech made for collecting government debt over political and other speech, the law is a content-based restriction" that lacks sufficient justification.
SCOTUS did not strike down the entirety of the TCPA, however. Instead, the Court severed the exception, leaving the rest of the law intact. The Court ruled that not only does the broader Communications Act of 1934, of which the TCPA is a part, contain a severability clause that applies to the government debt exception, but there is also a strong presumption against judicial invalidation of an entire statute where only one provision of a law violates the Constitution. SCOTUS was particularly convinced that this was the correct course of action given that the TCPA existed for nearly 25 years prior to adoption of the government debt exception. As such, the Court understood that the law is capable of functioning even without the exception. Equally important to SCOTUS' reasoning to uphold the broad robocall restriction, was its deference to Congress' clear interest in preventing unsolicited telemarketing.
Adapting Your Telemarketing Business to Changes in TCPA Law
Telemarketers face a wide range of legal risks. The importance of minimizing risk in undertaking a telemarketing campaign cannot be overstated given the potentially devastating exposure for TCPA violations. With SCOTUS removing TCPA protections for a broad range of calls, liability risk is likely to grow. Against the backdrop of a continually-evolving regulatory climate, it is critical to work closely with knowledgeable counsel to ensure that all practices and procedures comply with applicable laws, rules and regulations.
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