TCPA Litigation Update — The TCPA’s Constitutionality After Barr v. AAPC

In the aftermath of the Supreme Court’s decision in Barr v. AAPC, courts found that violations of the Telephone Consumer Protection Act (“TCPA”) occurring between 2015 and July 2020 cannot be enforced because the law was unconstitutional at the time. In December 2020, a court in the Middle District of Florida found that the “Supreme Court concluded that the TCPA was an unconstitutional content-based restriction as written when the statute was amended in 2015. To remedy the unconstitutional statute, the Supreme Court severed the government-debt exception from the TCPA and left the remainder of the TCPA intact.” Hussain v. Synergy, et al., Case No. 5:20-cv-00038-JSM-PRL, Doc. 74 (M.D. Fl. Dec. 11, 2020). To date, this holding has been adopted by district courts in the Sixth and Eleventh Circuit.

In recent weeks, however, attorneys general from several states have urged the 6th U.S. Circuit Court of Appeals to reverse a lower court ruling dismissing a TCPA case on these grounds. In Lindenbaum v. Realgy, the U.S. District Court for the Northern District of Ohio reasoned that the TCPA couldn’t be enforced during that period because the Supreme Court said in 2020 that it was unconstitutional for Congress to amend the law in 2015 with a government debt exception. In a recent Amicus Brief, the attorneys general ask for the reversal of the Lindenbaum decision.

Whether the Sixth Circuit will agree with the attorneys general is unknown and largely dependent on the panel. Nevertheless, that decision will have no bearing on the cases currently being decided in the Eleventh Circuit. We will closely monitor any developments from the Sixth Circuit and other district courts as this line of cases continues to make headway across the nation.

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