Fourth Circuit Finds TCPA Debt-Collection Exemption Violates the First Amendment

In a groundbreaking ruling, the Fourth Circuit unanimously struck down an exemption to the Telephone Consumer Protection Act (TCPA) as a violation of the Free Speech Clause of the First Amendment.

 The TCPA prohibits calls to cell phones with the use of an automatic telephone dialing system or an artificial or prerecorded voice, subject to three statutory exemptions. But in 2015, Congress created a statutory exemption for automated calls made to collect debts owed to or guaranteed by the federal government.

 Represented by Copilevitz, Lam & Raney, P.C., the American Association of Political Consultants and three other plaintiffs that engage in political activities argued that the debt-collection exemption violated their free speech rights by permitting commercial debt-collection calls while prohibiting the political calls they made, which are protected under the Free Speech Clause of the First Amendment.

 The Fourth Circuit agreed with Plaintiffs that the statutory exemption contravenes the Free Speech Clause of the First Amendment. The Court did not, however, find the entire TCPA unconstitutional. Instead, it struck the exemption from the TCPA and kept the remaining statute intact. Thus, the debt-collection exemption has been removed from the automated call ban, which now applies to those calls.

 “Severing the exemption is the wrong remedy for an unconstitutional statute. Now less speech is legal than before our suit. This runs counter to the First Amendment’s purpose to remove barriers and allow for more speech,” said William Raney, who argued on behalf of the Plaintiffs.

 The case is Am. Ass’n of Political Consultants, Inc. v. FCC, No. 18-1588, 2019 U.S. App. LEXIS 12127 (4th Cir. Apr. 24, 2019).