SCOTUS Appears Unlikely to Strike Down TCPA in Response to Robocall Case

Congress created a “pretty discrete exception” 25 years after it passed the law, Roberts said. It's “an extremely popular law,” he said. “Nobody wants to get robocalls on their cellphone.” Roberts questioned whether Congress would “embrace” overthrowing the statute to save the debt exemption: “They’d have to be very anxious to be more unpopular.”

“My clients are political organizations that want to engage in political speech at the core of the First Amendment,” said Latham & Watkins’ Roman Martinez, who argued for AAPC. “The TCPA bars them from using some of the most effectives tools, … automated text messages and calls to cellphones.” The exception lets government-approved “speakers” use the same technologies political organizations can’t use, Martinez said. This “arbitrarily favors commercial speech over core political speech” and “should be struck down,” he said.

Federal courts can’t fix First Amendment violations by making more speech illegal, Martinez said. The 2015 exemption addresses “the kind of speech that the FCC itself has acknowledged is the most intrusive kind of speech and those are the debt calls,” he said.

“If you just take a peek at the real world, here this is one of the more popular laws on the books because people don’t like cellphone robocalls,” said Justice Brett Kavanaugh: “That seems just common sense. Do you want to argue against that common sense?”

“Aspects” of the TCPA are popular, but in 2015, FCC Chairman Ajit Pai called the law “the poster child for lawsuit abuse” (see 1506180046), Martinez responded: “There’s a whole lot of other problems with the law as well. This law has its supporters and its distracters.” It has been on the books “for 30 years and has been perceived as constitutional” and is “very popular,” Kavanaugh said.

Justice Clarence Thomas asked why the restriction is the constitutional problem as opposed to the objection. The exception “reveals the underlying frailty … of the justification for the restriction,” Martinez said. Thomas rarely asks questions in oral argument. Monday, he spoke during argument on Booking.com (see 2005040050).

“Why shouldn’t we limit any remedy striking down this provision simply to permit the types of calls that your clients make,” asked Justice Sonia Sotomayor. “Why should we be striking down the entire statute?” AAPC would still have to prove that restricting political speech “is not narrowly tailored and I don’t know that that’s been done in this case,” she said.

Justices also questioned Malcolm Stewart, deputy solicitor general, who argued the government’s case defending the TCPA and the debt exemption. Courts have “consistently upheld” the constitutionality of the overall act “as a content-neutral restriction on the use of calling technologies that consumers found particularly intrusive and annoying,” he said. That isn’t changed by the narrowly tailored exemption, he said.

Possible Outcomes

The judges may keep the rest of the law even if they act on the exemption, some experts told us.

"Supreme Court justices also receive robocalls,” said Hogan Lovells’ Mark Brennan. “Perhaps for that reason, many seemed to focus on the impact from invalidating parts of the TCPA,” he said. The judges seem to be considering remedies, including striking down the federal debts exemption, “but we also heard discussions ranging from striking down the underlying autodialer restriction to creating additional targeted exemptions for political speech," he said. There was no “clear alignment among the justices.”

Justices appear “likely to strike down on First Amendment grounds the TCPA exception allowing unconsented robocalls to collect government debt, but sever that provision from the statute, allowing the rest of the TCPA to remain intact,” emailed Wiley’s Scott Delacourt. “While the outcome may be a disappointment for would-be political callers, at least some of the questioning suggested other avenues for TCPA relief for those callers.”

Most of the jurists seemed to agree the TCPA’s government-backed debt exception "creates an unconstitutional content based restriction on speech that fails to meet strict scrutiny” but not on the appropriate remedy, said Dorsey & Whitney’s Scott Goldsmith. Justices never delved “into the definition of an automatic telephone dialing system,” he said.

Justices were struggling with the appropriate remedy if they find the 2015 exemption to be unconstitutional, emailed Kelley Drye’s Steve Augustino: “They called the issue ‘troubling,’ ‘unprecedented,’ and ‘asymmetrical’ and as a group seemed to be undecided on how to resolve the question. This could go either way. When the ruling comes out, the first place I’ll be looking is at the portion of the opinion dealing with the remedy.” Justices didn’t take up suggestions of some amicus parties to address the definition of an automatic telephone dialing system, he said.

Sen. Ed Markey, D-Mass., and Rep. Anna Eshoo, D-Calif., said the tenor of the oral argument makes them “confident” the Supreme Court “will uphold” TCPA. The law “is now, more than ever, an essential law that protects consumers from countless unwanted robocalls every year,” the lawmakers said in a statement. “Without such protections, these calls would intrude on Americans’ privacy, put them at risk of costly scams, and undermine confidence in the nation’s telephone networks.” If the high court “were to invalidate” TCPA, “Americans would experience a tsunami of robocalls and constant bombardment of their mobile devices that could render them effectively useless.” The two earlier led an amicus brief in support of the law.

“It was an honor to argue … even by telephone,” Martinez told us: “Our case raises important questions about the First Amendment, and we are hopeful the court will vindicate free speech principles and strike the statute down.”

At one point during the argument, a toilet flush could be heard in the background. “To be clear, the @FCC does not construe the flushing of a toilet immediately after counsel said ‘what the FCC has said’ to reflect a substantive judgment of the Supreme Court, or of any Justice thereof, regarding an agency determination,” Pai joked on Twitter.