Privacy Litigation 2020 Year in Review: TCPA Litigation

2020 saw important developments in Telephone Consumer Protection Act (TCPA) litigation. The Supreme Court struck down the TCPA’s government-backed debt exemption, leaving district courts to address five years of enforcement and liability under the provision that may now be reversible. Meanwhile, the courts’ understanding of auto-dialers (ATDS) continued to evolve, with the Supreme Court poised to provide clarity on whether ATDS includes any device that can “store” and “automatically dial” telephone numbers—a decision that will either broaden or significantly curtail the reach of the TCPA. The courts continue to grapple with the nuances of communications technology as the latter evolves.

SCOTUS Strikes Down Government-Backed Debt Exemption

In Barr v. American Association of Political Consultants Inc., the Supreme Court struck down the government‑backed debt exemption in § 227(b)(1)(A)(iii) of the TCPA as an impermissible content-based restriction that violates the First Amendment’s free speech clause. As explained in the plurality opinion, “[a] robocall that says, ‘Please pay your government debt’ is legal. A robocall that says, ‘Please donate to our political campaign’ is illegal. That is about as content-based as it gets.”[1] To the dismay of defendants everywhere, though, the Supreme Court further held that the unconstitutional provision was severable.

Following Barr, some district courts have held that the Supreme Court’s ruling bars courts from enforcing the TCPA’s “robocall” provisions entirely for the nearly five-year period between Congress adding the exemption in November 2015 and the Supreme Court severing it in its July ruling.[2]

The first court to reach this conclusion—a federal district court in Louisiana—reasoned that “in the years in which § 227(b)(1)(A)(iii) permitted robocalls of one category of content (government-debt collection) while prohibiting robocalls of all other categories of content, the entirety of the provision was, indeed, unconstitutional,” depriving the court of jurisdiction over much of the putative class action against the defendant.[3] Shortly thereafter, an Ohio federal district court came to the same conclusion, granting an electric and gas supplier’s motion to dismiss a proposed class action alleging the company placed two pre-recorded calls on the plaintiff’s cellphone without her consent. If courts in other jurisdictions adopt this reasoning, liability for TCPA claims from November 2015 through July 2020 would effectively be erased.

Gearing Up for a Battle Over Auto-Dialers

The Supreme Court is set to decide a case that could settle whether the definition of an “automatic telephone dialing system” (ATDS) encompasses any device that can “store” and “automatically dial” telephone numbers, even if the device does not use a random or sequential number generator. In 2019, the Ninth Circuit revived a putative class action accusing Facebook of violating the TCPA by sending automated texts using programmed equipment and a database of numbers.[4] The plaintiff alleged that even though he was not a Facebook user, Facebook used its system to send him security-related alerts. While the lower court determined the plaintiff failed to allege use of an ATDS, the Ninth Circuit relied on a prior decision to find the plaintiff’s allegations “plausibly suggest that Facebook’s equipment falls within this definition.”[5] Facebook’s petition for certiorari was granted in July of this year, and oral arguments were heard on December 8.

Moving Forward

2020 saw a continuing trend of courts expanding TCPA restrictions in an effort to protect consumers from telemarketing abuses. The Supreme Court’s upcoming decision in Duguid v. Facebook may set the tone for 2021; the case marks a decision point through which the Court will either broaden or curtail the TCPA’s reach. In the meantime, local courts are left to evaluate the effect of new legal developments on pre-existing, or even long-closed, actions. Consumers and courts alike will continue to come to grips with technological and legal developments impacting the scope of the TCPA—a statute that affects virtually all industries.

[1] 140 S. Ct. 2335, 2346 (2020).

[2] See Creasy v. Charter Commc’ns, Inc., No. 20-1199, 2020 WL 5761117 (E.D. La. Sept. 28, 2020); Lindenbaum v. Realgy, LLC, No. 1:19 CV 2862, 2020 WL 6361915 (N.D. Ohio Oct. 29, 2020).

[3] Creasy, 2020 WL 5761117, at *2.

[4] Duguid v. Facebook, Inc., 926 F.3d 1146 (9th Cir. 2019).

[5] Id. at 1151.