Supreme Court Declines to Hear Arguments in TCPA ATDS Case

The Supreme Court yesterday denied a petition to hear arguments in a Telephone Consumer Protection Act case that sought to overturn an Appeals Court ruling issued last year over whether the entire statute was unenforceable because it contained a provision for five years that was found to be unconstitutional.

The Sixth Circuit Court of Appeals last year overturned a lower court’s ruling, determining that just the provisions of the TCPA that were deemed to be unconstitutional — allowing the use of automated telephone dialing systems when attempting to collect debts owed to the federal government — can be applied retroactively, and not that the TCPA as a whole was unenforceable for the five years that the provision was part of the statute. Essentially, the Supreme Court agreed with the Sixth Circuit by denying Realgy’s petition to hear arguments in the case.

When the Supreme Court issued its ruling in Barr v. American Association of Political Consultants, determining that the government-backed debt collection exception was unconstitutional, it raised some questions, namely: was the entire TCPA unconstitutional during the period that the exception was part of the statute, or was just the exception unconstitutional and the rest of the TCPA was ok? A District Court judge in Lindenbaum v. Realgy ruled that the entire TCPA became unconstitutional, but that was overturned by the Sixth Circuit, and now the Supreme Court has declined to take up the case.

The Sixth Circuit’s ruling created a split at the Circuit level and ignored “binding First Amendment precedent” Realgy argued in its petition to the Supreme Court.

“… if a government debt collector had been sued alongside Realgy in this case, she would have been immediately dismissed with prejudice under the exception that actually existed at the time,” the petitioner wrote in its brief. “That speech discrimination — evidenced by the countless number of lawsuits faced by non-government debt collectors prior to AAPC while such collectors were immune — cannot be undone. The speech has already been chilled because the exception existed as a historical fact and people ordered their lives based on it.”

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