The U.S. Supreme Court has granted certiorari to review whether a 2015 amendment to the Telephone Consumer Protection Act (TCPA) violates the First Amendment and/or if it perhaps renders the statute unconstitutional as a whole.

Specifically, on a petition for review of the decision by the U.S. Court of Appeals for the Fourth Circuit in American Association of Political Consultants v. FCC, the Supreme Court agreed to consider the question presented of “[w]hether the government-debt exception to the TCPA’s automated-call restriction violates the First Amendment, and whether the proper remedy for any constitutional violation is to sever the exception from the remainder of the statute.”

Reed v. Town of Gilbert

The constitutional issue in American Association of Political Consultants arises in significant part from a confluence of events in 2015. The TCPA, and implementing rules administered by the Federal Communications Commission (FCC), regulates telemarketing and prohibits the use of automated telephone dialing equipment to call or text cell phones and use of prerecorded messages generally, except with prior consent of the called party or for emergency purposes.

Part of the Bipartisan Budget Act of 2015 amended the TCPA to exempt from this ban calls to “collect a debt owed to or guaranteed by the United States,” and in 2016, the FCC adopted rules formalizing that exemption. Meanwhile, also in 2015, the Supreme Court in Reed v. Town of Gilbert clarified that governmental regulations are content-based if they apply to particular speech because of the topic discussed or idea or message expressed—i.e., if content must be examined to assess whether and/or how a regulation applies.

Reed came to be featured prominently in First Amendment attacks on the TCPA and its implementing rules, and on state analogs, which (pre-Reed) typically had been upheld under intermediate scrutiny. Post-Reed, litigants have sought strict scrutiny and invalidation on First Amendment grounds, alleging that the TCPA’s federal debt collection exemption and/or other exceptions or allowances such as those created by the FCC for, e.g., noncommercial calls, health care calls, generic debt-collection, etc., are content based.

Mixed Results from Reed

In some cases, courts have held Reed applies and, for example, struck down state laws under strict scrutiny. Other courts held strict scrutiny does not apply and upheld the TCPA (or the state law), while still others held strict scrutiny applies but that regulation of “robocalling” and/or telemarketing involve rare cases of when a statute (or rule) survives strict scrutiny.

And some courts, like the Fourth Circuit in Political Consultants, have held strict scrutiny applies due to the TCPA’s federal debt collection carve-out, but rather than invalidating the statute as a whole, severing the content-based exception renders the law constitutional.

TCPA's Fate and Reed's Application

The outcome of Supreme Court review in Political Consultants is anxiously awaited. There is a great deal of litigation under the TCPA and with it has come divergent authority. Along with the Political Consultants’ constitutional issue, the question of how to identify “automatic telephone dialing systems” for the TCPA autodialer restriction has resulted in differing answers across the country after the U.S. Court of Appeals for the District of Columbia decision in ACA International v. FCC left stakeholders in search of nationwide consistency.

Supreme Court review in Political Consultants should not only provide a nationwide answer on whether the TCPA is unconstitutional now that it includes a federal debt collection exception and, if so, whether invalidation or severance is the proper result, but also guidance on how to apply Reed to statutes like the TCPA.

The case should be briefed this term but likely not heard and decided until the next.