TCPA Law Ruled Unconstitutional

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In a landmark decision that could have widespread and significant implications, the United States District Court for the Eastern District of Louisiana has ruled that the Telephone Consumer Protection Act (“TCPA”) was unconstitutional from 2015 to 2020.  In doing so, the Court vacated claims that TCPA law had been violated in connection with calls received during that time period. 

Why was the TCPA law ruled unconstitutional and what does it mean going forward?

Readers will recall that the United States Supreme Court (“SCOTUS”) recently declared that the government debt exception to the TCPA was unconstitutional, and, therefore, severed it from the broader TCPA law robocalling prohibitions.  While most observers processed SCOTUS’ decision as a straightforward remedy leaving intact the constitutionally valid portions of the statute, SCOTUS failed to reach a majority rationale for severing the exemption from the TCPA.  Because of this lack of clarity, the Louisiana Court determined that the only logical reading of the SCOTUS decision is that “in the years in which [the government debt exception] permitted robocalls of one category of content . . . while prohibiting robocalls of other categories of content, the entirety of the prohibition was, indeed, unconstitutional.”  In the District Court’s opinion, this renders claims alleging violation of the TCPA’s robocalling prohibition null and void if those claims arise from calls or text messages received after Congress’s enactment of the government debt exception in 2015, but before the SCOTUS decision rendered on July 6, 2020.  

Potential Sea Change for TCPA Law

As the District Court Judge noted, the issue of whether the entire TCPA robocalling prohibition was unconstitutional during the existence of the government debt exception was one of first impression, meaning that no other Court has ruled on this question yet.  While it remains unclear how widespread the adoption of this rationale will be (limited, we expect), it would behoove any marketing company that is defending a TCPA lawsuit to request relief on this basis.  In addition to a defense against an individual call recipient’s claims, the ability to defeat TCPA claims for calls dating back to 2015 is a powerful tool to employ in an effort to reduce exposure to TCPA class action lawsuits. Regardless of how this case is parsed, it is incumbent to consult with TCPA counsel to incorporate this decision as part of a broader litigation defense strategy. 

If you need to review your telemarketing practices or are the subject of a TCPA litigation proceeding, please e-mail us at info@kleinmoynihan.com, or call us at (212) 246-0900.

The material contained herein is provided for informational purposes only and is not legal advice, nor is it a substitute for obtaining legal advice from an attorney.  Each situation is unique, and you should not act or rely on any information contained herein without seeking the advice of an experienced attorney.

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Photo by Ilias Chebbi on Unsplash

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David O. Klein

David O. Klein

David Klein is one of the most recognized attorneys in the telemarketing, technology, Internet marketing, sweepstakes and telecommunications fields. Skilled at counseling clients on a broad range of technology-related matters, David Klein has substantial experience in negotiating and drafting complex licensing, marketing and Internet agreements.

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