Privacy v. Speech? Supreme Court to Weigh in on TCPA Restrictions on Automated Calls

The Supreme Court on May 6, 2020 heard oral argument on a widely-watched First Amendment case that may have broad ramifications for the Telephone Consumer Protection Act and, potentially, government restrictions on telecommunications more broadly.

Originally passed in 1991, the Telephone Consumer Protection Act is enforced by the Federal Communications Commission and contains various restrictions on telemarketing, including the use of auto-dialers (sometimes called “robocallers”).  The FCC has strengthened the law’s restrictions over time and adapted them to newer communications technologies, most notably texting.

Among the TCPA’s core restrictions is a requirement to obtain express consent from consumers before robo-calling them, and to provide automated opt-out mechanisms for robo-calls.  But, recognizing that robo-calls sometimes serve particular public interests, the TCPA rules contain a number of exemptions to the consent requirement.  These exemptions allow, for example, automated calls about school closings for inclement weather and certain healthcare matters (such as reminders from pharmacies about prescription pickups) without prior express consent.  A 2015 amendment to the TCPA created additional exemptions from the consent requirement for collection of government debts, such as federally-provided student loans.

In 2018, a coalition of plaintiffs – including several polling firms and other political groups – brought a constitutional challenge to the government debt exemption, arguing that it permitted the government to speak freely when attempting to collect debts, but barred many private actors from the same kind of speech.  The plaintiffs further argued that striking down the government debt exemption required the TCPA’s entire automated call ban to be invalidated.

The Fourth Circuit in 2019 partially sided with the plaintiffs and vacated a summary judgment granted in favor of the government.  The Fourth Circuit agreed that the favoring of speech to collect government debts ran afoul of the First Amendment, but disagreed that the exemption could not be severed from the larger ban.

After appeal to the Supreme Court, many business groups weighed in with amicus briefs hoping to see the entire ban struck down, while privacy advocates argued in the government’s favor.  Generally, Supreme Court precedent does not favor invalidation of an entire statutory scheme if the statute can otherwise operate as intended in the absence of an unconstitutional portion.  At the same time, though, many among the Court’s conservative members have historically been skeptical of government regulation of speech by businesses.  For that reason, it is possible that the TCPA’s opponents may find a sympathetic ear, both with respect to the government debt exemption and the broader argument against the robocall ban.

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