Sixth Circuit Reverses District Court In TCPA Enforceability Challenge

• Published date: 27 October 2021
• Subject Matter: Consumer Protection, Government, Public Sector, Litigation, Mediation & Arbitration, Constitutional & Administrative Law, Class Actions, Dodd-Frank, Consumer Protection Act
• Law Firm: Cozen O'Connor
• Author: Ms Meredith C. Slawe, Michael W. McTigue Jr. and Max Kaplan

Key Points

• The Sixth Circuit recently issued a significant ruling in a closely watched TCPA proceeding.
• The Sixth Circuit ruled that the TCPA's automated call provisions could be enforced against businesses in connection with calls made between 2015 and July 2020 notwithstanding the Supreme Court's decision in Barr v. American Association of Political Consultants, Inc., 140 S. Ct. 2335 (2020). In Barr, the Supreme Court held that the government debt exception to the automated call provisions (added in 2015) created an unconstitutional content-based restriction on speech.
• This is the first circuit-level decision addressing the implications of the Supreme Court's ruling in Barr.
• Businesses should be mindful that the TCPA's automated call provisions can still be enforced against them in connection with calls made during that time period (subject to the four-year statute of limitations).

The Telephone Consumer Protection Act (TCPA) has been the subject of two significant Supreme Court decisions over the past 18 months. Recent focus has understandably been on the decision in Facebook, Inc. v. Duguid,¹ which resolved the deep circuit split over the definition of an automatic telephone dialing system, or ATDS, under the TCPA. That decision, which unanimously rejected the Ninth Circuit's broad interpretation of the statute, was an important step in realigning the TCPA with its intended purpose. The Court's definitive holding - that an ATDS "must have the capacity either to store a telephone number using a random or sequential generator or to produce a telephone number using a random or sequential number generator"² - has already been relied on by several courts in dismissing and granting summary judgment on ATDS-based claims since the decision came down on April 1, 2021.

There has been less focus on the Court's earlier decision in Barr v. American Association of Political Consultants, Inc. (Barr),³ which struck the government-debt exception to the automated technology provision as an impermissible content-based speech restriction. The Court's multiple opinions left uncertain whether the automated technology provision (with the impermissible exception stricken) could be enforced retroactively during the time period that it was unconstitutional. On September 9, 2021, the Sixth Circuit addressed this open question with its decision in Lindenbaum v. Realgy, LLC,⁴ becoming the first appellate court to rule on the scope and retroactive applicability of the Court's decision. Reversing the district court, the Sixth Circuit held that Barr's prospective remedy did not cause the key statutory restriction to be unenforceable during the time it contained an unconstitutional content-based speech restriction. This decision perpetuates the statute's impermissible content-based restriction that the Court intended to eliminate.

The Court in Barr, in affirming the Fourth Circuit, held that the government-debt exception to the automated technology restriction in the TCPA, which had been added by amendment in connection with the Bipartisan Budget Act in 2015, was an impermissible content-based restriction on speech in violation of the First Amendment.⁵ While the Court's ruling...