Consumer Advocates, State AGs Line Up Behind Plaintiff in TCPA ATDS Appeals Case

Consumer advocacy groups and 33 state attorneys general have lined up behind the plaintiff in a Telephone Consumer Protection Act case currently before the Sixth Circuit Court of Appeals that will determine whether calls made to an individual’s cell phone using an automated telephone dialing system before July 6 — when the Supreme Court ruled in Barr v. American Association of Political Consultants — relinquished the court’s subject matter jurisdiction over the claims.

The case — Lindenbaum v. Realgy, LLC — is one of a number of cases that have been ruled on at the District Court level on the topic of whether the TCPA was unconstitutional for a five-year period after Congress amended the law to allow for the use of ATDS’s when contacting individuals on their cell phones — without first obtaining prior consent — to collect on debts that were owed to, or guaranteed by, the federal government. The Supreme Court struck down that provision in the Barr ruling, and defendants have since argued that because that particular provision was found to be unconstitutional, then the entire TCPA was unconstitutional as well. Rulings on that argument at the District Court level have been split so far. The Lindenbaum case is the first of these cases to make it to the appellate level.

The defendant’s brief is due later this month, and amicus briefs in support of its position will be due in early March.

Amicus briefs in support of the plaintiff’s claim that the TCPA should not be ruled to be unconstitutional were due this past Monday. The brief from the attorneys general can be accessed by clicking here. The brief from the National Consumer Law Center and Electronic Privacy Information Center can be accessed by clicking here.

“The same logic supports uninterrupted enforcement of TCPA violations between 2015 and 2020: because the Court held that the robocall ban can and did function independently of the government-debt exception, the unconstitutionality of the government-debt exception does not prevent enforcement of the remaining, constitutionally permissible provisions of the TCPA,” the AGs wrote in their brief, arguing that the offending provision of the TCPA can be severed without rendering the entire law unconstitutional. “If this Court refuses to apply the Supreme Court’s severability holding to conduct that occurred between 2015 and 2020, it would effectively declare the entire statute unconstitutional during that period. This Court cannot respect Congress’s role by halting five years of constitutional enforcement actions under the TCPA.”

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