Amicus Briefs

Lindenbaum v. Realgy, LLC

US Court of Appeals for the Sixth Circuit

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Whether the Supreme Court’s decision to invalidate and sever the government debt exception from the Telephone Consumer Protection Act’s robocall ban requires courts grant retroactive immunity to robocallers for illegal calls made for the five years between the exception’s enactment and the Court’s decision to sever.

Summary

Congress enacted the Telephone Consumer Protection Act in 1991 to protect Americans from unwanted calls. One of the TCPA’s provisions requires callers obtain consent from called parties before making automated calls or calls with a prerecorded or artificial voice, known collectively as “robocalls.” In 2015, Congress added an exception allowing callers collecting a government debt to robocall without the consent of the called party. In July 2020, the U.S. Supreme Court held the government debt exception unconstitutional and severed the exception, leaving the broad robocall ban intact. As a defendant in another robocall suit, Realgy argued in a motion to dismiss that the Supreme Court’s decision prevented enforcement of the robocall ban from 2015, when the government debt exception was enacted, to 2020, when it was severed from the ban. The district court granted Realgy’s motion to dismiss. The plaintiff appealed to the U.S. Court of Appeals for the Sixth Circuit.

Background

Congress enacted the Telephone Consumer Protection Act in 1991 to protect Americans from unwanted calls. One of the TCPA’s provisions requires callers obtain consent from called parties before making automated calls or calls with a prerecorded or artificial voice, known collectively as “robocalls.” In 2015, Congress added an exception allowing callers collecting a government debt to robocall without the consent of the called party.

A group of political and polling organizations that wished to use autodialer technology, led by the American Association of Political Consultants, sued the Government to challenge the constitutionality of the autodialer ban. The groups claimed that the post-amended ban was an unconstitutional content-based restriction on speech. The groups argued that the entire robocall ban should be invalidated. The case made it all the way to the U.S. Supreme Court. In a fractured set of opinions, the Court held, in July 2020, that the government debt exception, not the entire robocall ban, was unconstitutional, and severed the exception, leaving the broad robocall ban intact. In deciding to sever the exception instead of strike down the entire ban, the plurality opinion relied on Congress’s clear expression of intent that the robocall ban not rise or fall with the constitutionality of the government debt exception.

Following the decision in Barr v. AAPC, Realgy, a defendant in a separate robocall suit, argued that the case against it should be dismissed because the Supreme Court’s decision prevented enforcement of the robocall ban from 2015, when the government debt exception was enacted, to 2020, when it was severed from the ban. The district court granted Realgy’s motion to dismiss. The court dismissed much of the plurality opinion’s reasoning as non-binding, instead relying on Justice Gorsuch’s opinion, joined only by Justice Thomas, that the entire robocall prohibition had to be invalidated, and all TCPA defendants granted retroactive immunity. The plaintiff appealed to the U.S. Court of Appeals for the Sixth Circuit.

EPIC’s Interest

EPIC supports strong enforcement of the TCPA to protect American consumers from the privacy invasion of unwanted automated calls and routinely participates as amicus in TCPA cases. EPIC filed a briefs Barr v. American Association of Political Consultants (First Amendment challenge to the TCPA before the U.S. Supreme Court) and Gallion v. Charter Communications, both of which concerned the First Amendment issue at stake in Lindenbaum. EPIC has also filed amicus briefs in Facebook v. Duguid, which concerns the definition of an automatic telephone dialing system, Gadelhak v. AT&T (same), ACA International v. FCC (challenge to the validity of FCC TCPA orders before the U.S. Supreme Court), and PDR Networks v. Carlton & Harris Chiropractic (scope of federal court deference to FCC TCPA orders before the U.S. Supreme Court). EPIC also files comments before the FCC on TCPA implementation.

U.S. Court of Appeals for the Sixth Circuit (No. 20-4252)

U.S. District Court for the Northern District of Ohio (No. 1:19-CV-2862)

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