Content-Based Distinction In Action: District Court Grants Summary Judgment Under The TCPA’s Government-Backed Debt Exemption.

Yesterday, TCPA World covered recent First Amendment challenges to the TCPA. Today we bring you an example of the TCPA’s content-based discrimination in action. The Middle District of Florida recently granted summary judgment to Navient Solutions on the ground that it called to collect a federal student loan. See Gaza v. Navient Solutions, LLC, No. 8:18-cv-1049, 2019 U.S. Dist. LEXIS 39773 (M.D. Fla. Jan. 23, 2019). The content of the speech — requesting payment on a federal student loan — ended the inquiry and resulted in summary judgment for the defendant.

None of this is to say that calls to collect government-backed debt should be covered by the TCPA. In fact, it’s pretty clear from the opinion that the defendant deliberately called the plaintiff, meaning that it did not use a random or sequential number generator. That should end the inquiry. And if courts actually enforced that statutory requirement, there would be no need for the government-backed debt exemption because collection calls are not made to randomly or sequentially generated numbers. The only entities that use that technology are the auto-spammers and offshore scam artists the TCPA was meant to address.

We mentioned yesterday that plaintiffs and the government argued, incorrectly, that the government-backed debt exemption is relationship based rather than content based. The Gaza case, and others like it, help demonstrate why that is not the case. But the case is also a reminder that the TCPA was a relationship-based statute as originally enacted. Or, more accurately, it was an anti-relationship statute. Implicit in the random or sequential number generation requirement is that the caller does not have a relationship with the people it is spamming. Instead, the caller hopes it will eventually reach a few people who will give up their bank account information to “the warranty department,” or to “win a cruise,” or to “the IRS to avoid going to jail.” The statute would not cover entities like the defendant in Gaza that actually have a relationship with the person they are calling, because they would not use a random or sequential number generator. Instead, they are legitimate companies, calling for legitimate purposes, that were never intended to be subject to the TCPA.