District Courts Now Split on Whether Provision in TCPA is Unconstitutional

Earlier this year, we wrote about Lindenbaum v. Realgy, a decision from the U.S. District Court for the Northern District of Ohio, which dismissed the plaintiff’s “robocall” class action under the Telephone Consumer Protection Act (TCPA), based on the Supreme Court’s 2020 holding that a statutory exception for automated calls to collect government debts was unconstitutional. Because 47 U.S.C. § 227(b)(1)(A)(iii) was unconstitutional at the time of the alleged violations, the district court determined that it lacked subject matter jurisdiction and dismissed the lawsuit. Lindenbaum is currently on appeal before the Sixth Circuit (No. 20-4252). On March 18, 2021, the ACLU joined the fight by filing an amicus brief in support of the defendant, arguing that the defendant cannot be held “liable under a discriminatory statutory scheme that punishes only disfavored speakers.”

Since Lindenbaum, the Middle District of Florida, in Hussain v. Sullivan Buick-Cadillac-GMC Truck, Inc., also held that this provision in the TCPA is unconstitutional. Similar to Lindenbaum, the plaintiff in Hussain alleged that she received pre-recorded phone calls and voicemails from the defendants without her consent. The defendants sought dismissal of the plaintiff’s complaint, alleging that the TCPA was unconstitutional and unenforceable during the time the phone calls were made, due to the unconstitutional provision. The Middle District of Florida, relying on Lindenbaum and Creasy v. Charter Communications, Inc., found that “the statute could not be enforced as written and a later amendment to a statute cannot be retroactively applied.” Further, “at the time [d]efendants engaged in the speech at issue in this case, [d]efendants were subject to an unconstitutional content-based restriction.” The court determined it lacked subject matter jurisdiction and dismissed the lawsuit.

However, district courts have begun to split. Recently, in McCurley v. Royal Sea Cruises, Inc., the defendant moved to dismiss based on lack of subject matter jurisdiction, alleging, as in the cases before it, that the TCPA was void between the years of 2015 and 2020. Specifically, the defendant argued that the class in the case involved telephone calls made between 2016 and 2017 and, therefore, the suit should be dismissed, “since there was no valid TCPA at the time the class was receiving telephone calls.” However, unlike in Creasy, Lindenbaum, and Hussain, where the motions to dismiss were granted, the McCurley court denied the motion.

In denying the motion, the McCurley court relied on language in a footnote by Justice Kavanaugh in Barr v. American Association of Political Consultants Inc. that “no one should be penalized or held liable for making robocalls to collect government debt after the effective date of the 2015 government-debt exception …” and that “our decision today does not negate the liability of parties who made robocalls covered by the robocalls restriction.” The McCurley court disagreed with the defendant’s argument that this footnote was mere dicta and should be ignored, due to the fact that the decision was joined by six other justices. Even if the footnote were dicta, the court found that it “signal[ed] the intent of the Supreme Court and what it would hold in future cases and, as such, may not be cavalierly dismissed by a district court.” The McCurley court directly disagreed with Lindenbaum and Creasy, stating that both cases “ignore[d] the pronouncements in the plurality decision as articulated by Justice Kavanaugh and joined by six other justices and adopt[ed] the position of the two-justice dissent.”

It is clear that these types of cases will continue to arise in the coming months. It will be interesting to see if the courts continue to split, or if one side will reign over the other. We will continue to update as the cases progress.