In 1991, Congress enacted the Telephone Consumer Protection Act’s (“TCPA”) designed to prevent “robocalls” to consumer telephones. See 47 U.S.C. § 227(b)(1)(A)(iii). More specifically, the TCPA prohibits anyone from calling or texting someone “using any automatic telephone dialing system or an artificial or prerecorded voice” without the “prior express consent of the called party.” The TCPA has been interpreted to ban robotexting.

In 2015, Congress amended the TCPA to create a government debt collection exception to the robocall ban. The carve out allowed robocalls to collect a debt owed to OR guaranteed by the United States. This had a major adverse impact on many consumers including those owing student loans that were guaranteed by the federal government.

The carve-out was challenged by the American Association of Political Consultants (“AAPC”). The AAPC argued that the carve-out violated the First Amendment of the US Constitution in that it unconstitutionally favored government-debt collection speech over political and other speech. The AAPC argued that the entire statute was unconstitutional and asked the federal court to invalidate it. At the trial court level, the AAPC lost. The trial court agreed that carve-out for government-collection robocalls gave preference to government speech over private speech, but held that the government had a compelling interest in collecting debt that justified the different treatment.

On appeal, the Fourth Circuit disagreed with the latter part of the conclusion. The Fourth Circuit held that the government’s interest in collecting debts owed to it was NOT sufficiently compelling to allow government speech to be treated differently than private speech. However, the Fourth Circuit refused to invalidate the entire TCPA. Rather, the Fourth Circuit held that the 2015 amendment creating the carve-out was invalid. Essentially, the TCPA returned to its pre-2015 status where the anti-robocall restrictions applied to all types of robocalls including government debt collection efforts.

The US Supreme Court recently issued a fractured decision that affirmed the ruling of the Fourth Circuit. See Barr v. American Association of Political Consultants, Inc., Case No. 19-631 (July 6, 2020). The court split 6-3 on the question of whether the government debt collection carve-out was constitutional. Justices Breyer, Ginsburg and Kagan would have upheld the exception. However, all the Justices agreed that the carve-out could be severed from the TCPA.

The case is notable for many reasons including the fact that none of the Justices indicated or signalled that the TCPA itself was unconstitutional. There has been a sustained effort over the last decade to severely limit or abolish the TCPA. Those efforts have no apparent support among the Justices.

The case is also notable since the Supreme Court has accepted a related case for appeal. As we discussed here, one of the thorniest legal issues with the TCPA is what constitutes an automatic dialing machine. There is a split among the Federal Circuit courts on this issue and the Supreme Court has accepted an appeal that should resolve the question. See Facebook, Inc. v. Duguid, Case No. 19-511 (July 9, 2020). The case will be watched with interest.

If you have legal questions about consumer privacy, data security, communication technologies and internet law, contact the internet lawyers at Revision Legal at 231-714-0100.

The TCPA’s Consent Framework After Barr v. AAPC

The Supreme Court’s decision in Barr v. American Association of Political Consultants, Inc., 140 S.Ct. 2335 (2020), resolved the First Amendment challenge to the TCPA’s robocall prohibition by severing the unconstitutional government-debt-collection exception while leaving the underlying statute intact. The practical result is that all categories of robocalls and robotexts—not just political or commercial calls—now require prior express consent from the called party. The Court’s unanimous agreement on severability ensures that no caller can argue that the entire TCPA is invalid because of the now-excised 2015 amendment.

Prior express consent under the TCPA means written consent for marketing calls and texts, and oral or written consent for informational calls. The FCC’s regulations distinguish between calls made to wireless numbers for marketing purposes, which require written consent with specific disclosure language, and calls for nonmarketing purposes, which require only that the consumer have provided the number in connection with the relevant transaction. Businesses must maintain records of consent, including the date, method, and disclosure language.

The Facebook v. Duguid Autodialer Question Resolved

The companion issue referenced in the original post—what constitutes an automatic telephone dialing system under the TCPA—was resolved by the Supreme Court in Facebook, Inc. v. Duguid, 592 U.S. 395 (2021). The Court held 9-0 that an automatic telephone dialing system is a device that uses a random or sequential number generator either to store or to produce telephone numbers to be called. This narrowed the definition significantly: a dialing system that calls numbers from a stored list rather than generating them randomly or sequentially does not qualify under the statute.

The Duguid decision substantially reduced TCPA class-action exposure for companies that use customer contact lists rather than auto-generated number sequences. However, the decision did not eliminate the TCPA’s prerecorded voice prohibition, which applies regardless of the type of dialing equipment used. Companies using pre-recorded messages to any wireless or residential number still require prior express consent.

State TCPA Analogs and Stricter Requirements

Several states have enacted telephone solicitation statutes that are more restrictive than the federal TCPA. Florida’s Telephone Solicitation Act was amended in 2021 to require written consent for any automated call or text to a Florida consumer, covering even manual broadcast systems. California’s Public Utilities Code imposes independent consent and disclosure requirements. Washington’s commercial communications statutes layer additional obligations for communications to Washington residents.

Companies that conduct telemarketing or automated communications at scale must map their consent processes against the law of every state where they have customers, not just federal requirements. A consent obtained under a valid federal standard may still be deficient under state law if the state imposes additional disclosure or opt-out requirements.

TCPA Compliance Best Practices

• Obtain written, affirmative consent before making any automated or pre-recorded marketing call or text to a cell phone—verbal consent is insufficient for this category.
• Maintain a documented consent record for each number in your calling or texting list, including timestamp, IP address, and the exact consent language displayed to the consumer.
• Implement a do-not-call list scrubbing process against the National DNC Registry and internal opt-out lists before each calling campaign.
• Train sales and marketing staff on the difference between informational and marketing communications and the corresponding consent requirements.
• Audit third-party lead generators for TCPA compliance before purchasing contact lists—liability for calls made with invalid consent is not extinguished by relying on a third party’s assurances.
• Conduct annual legal reviews of your consent forms, scripts, and calling practices as FCC regulations and case law continue to evolve.

If your business has received a TCPA demand letter or is defending a TCPA class action, or if you need to design a compliant telemarketing program, contact the internet and consumer-protection lawyers at Revision Legal at 231-714-0100.