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Supreme Court Upholds Robocalling Restrictions but Leaves Future of Regulatory Exemptions Uncertain

July 9, 2020

Supreme Court Upholds Robocalling Restrictions but Leaves Future of Regulatory Exemptions Uncertain

July 9, 2020

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An attack on TCPA’s prohibitions of robocalls or other forms of automated communications will prove to be an uphill battle after this Court’s decision.

On July 6, 2020, the United States Supreme Court, in Barr v. American Association of Political Consultants, addressed an exemption in the Telephone Consumer Protection Act (TCPA), which generally prohibits unsolicited robocalls, permitting such calls in order to collect debt owed to the United States.[1] The Court determined that the exemption is content-based and thus unconstitutional under the First Amendment, but declined to strike down the robocall restriction as a whole; instead, the Court held that exemption alone invalid. In doing so, the Court upheld Congress’ decision to prohibit certain methods of unsolicited communication in the TCPA, but questioned the future of other, potentially content-based exemptions contained in its implementing regulations.

In 1991, Congress passed the TCPA, which, among other things, generally bans the placement of robocalls to any cellphone number by way of using an automatic telephone dialing system or to any residential telephone number using an artificial or prerecorded voice, unless previous consent has been provided by the recipient of such call or in the case of an emergency.[2] The TCPA also prohibits any unsolicited advertisement or fax without consent[3] and authorizes the Federal Communications Commission (FCC) to promulgate regulations to enforce the statute.[4] Significant penalties are statutorily provided for violations of the TCPA, including damage awards of up to $1,500 per violation and actions brought by states against robocallers on behalf of their citizens.[5]

In 2015, Congress added an exemption in the TCPA for robocalls “made solely pursuant to the collection of a debt owed to or guaranteed by the United States government.”[6] Several political organizations sought to challenge the robocalling prohibition in its entirety based upon this new exemption.[7] Their argument was that the provision unconstitutionally restricted content-based speech by permitting certain speech—the collection of government debt—while prohibiting speech on other topics.[8] Prior to the case reaching the Supreme Court, the Fourth Circuit held that the government debt collection exemption to the robocalling prohibition was unconstitutionally content-based, but severed the exemption from the TCPA, thereby leaving the rest of the TCPA intact.[9]

On appeal, the Supreme Court agreed. Although there was no majority opinion, six members of the Court held that the government debt-collection exemption was unconstitutional content-based speech, while seven members concluded that that exemption could be severed from the TCPA, leaving the remainder of the law operational.[10] Given that the plaintiffs brought suit in order to invalidate the TCPA as a whole in order to permit them to make unrestricted robocalls, this result was more like a loss packaged as a win: Because the TCPA stands, plaintiffs are still prohibited from calling phones in the same manner they had previously been prohibited.

The Court’s decision makes clear that the general prohibition on robocalls contained in the TCPA remains. The Court did not address, nor did it seem to have a problem with, the proscription of the methods of unsolicited communication, whether that be robocalls, faxes, texts or the like, as defined in the TCPA. Rather, the Court was concerned with ensuring that these restrictions were not used in a manner that favors one type of content or message over another. Accordingly, an attack on TCPA’s prohibitions of robocalls or other forms of automated communications will prove to be an uphill battle after this Court’s decision.

The Court, however, expressly left unresolved the validity of other exemptions contained in FCC regulations. The TCPA grants the FCC authority to exempt robocalls made using an artificial or prerecorded voice from the statutory prohibition.[11] The FCC, in turn, grants exemptions for robocalls:

  1. “made for emergency purposes;”
  2. “not made for a commercial purpose;”
  3. “made for a commercial purpose but does not include or introduce an advertisement or constitute telemarketing;”
  4. “made by or on behalf of a tax-exempt nonprofit;” and
  5. made to deliver a “health care message.”[12]

These exemptions could likewise be characterized as content-based restrictions for the same reasons as the government debt exemption addressed in Barr v. AAPC. Therefore, the Court’s decision could have implications for invalidating any exemptions promulgated in FCC regulations, whether now or in the future, which will play out as courts apply the decision in Barr v. AAPC.

For More Information

If you have any questions about this Alert, please contact Brian J. Slipakoff, Jonathan Aronchick, any of the attorneys in our Trial Practice Group or the attorney in the firm with whom you are regularly in contact.


[1] Barr v. American Ass’n of Political Consultants, et al., No. 19-631, slip op. (U.S. July 6, 2020).

[2] 47 U.S.C. § 227.

[3] Id. § 227(a)(1)(B).

[4] Id. § 227(a)(2)(B).

[5] 47 U.S.C. §§ 227(b)(3) and (g)(1).

[6] Id. § 227(b)(1)(B).

[7] American Ass’n of Political Consultants, at 5.

[8] Id.

[9] Id.

[10] Id. at 2.

[11] 47 U.S.C. § 227(b)(1)(B).

[12] 47 C.F.R. § 64.1200(a).

Disclaimer: This Alert has been prepared and published for informational purposes only and is not offered, nor should be construed, as legal advice. For more information, please see the firm's full disclaimer.