Another court holds the TCPA is unconstitutional, but we can keep it kosher by just removing that part. What? You’re shook. As the newest member of TCPAWorld’s defense team, I feel you.
Before we kick this off, let’s take it back to 1991: the birth of Congress’s TCPA; inked by H.W. Bush. Fast forward to 2015: Congress amends the TCPA, ushered in by Obama. The amendment exempts debt collectors calling to collect debt owed to (or guaranteed by) the U.S. government. This exemption quickly caught constitutional challenges.
For example, in April 2019, the 4th Circuit in American Association of Political Consultants v. FCC, No. 18-1588 (4th Cir. 2019) held that the TCPA, with the government exemption, is a content-specific-statute, analyzed under strict scrutiny, and presumed unconstitutional. It ruled, that since a private debt collector can make identical calls to a cell phone using prohibited technology, and the calls for a U.S. government guaranteed loan would be OK, but the calls for a loan not government-backed would be illegal, the TCPA, unconstitutionally discriminates against speech!
Boom. The TCPA is unconstitutional.
To cure this, the 4th Circuit, in a MASSIVE departure from historical First Amendment analysis, severed the government debt collection exemption from the balance of the TCPA – instead of evaluating the constitutionality of the ENTIRE TCPA! The Czar analyzed this solution by the 4th Circuit on Unprecedented episode 6:
“When [the Fourth Circuit] undertook that analysis, [it] of course found that the exemption did not survive strict scrutiny, how could it? But rather than strike down the entire statute, which I think is the appropriate remedy, it severed out the exemption, becoming the first circuit ever, to sever an exemption in a bid to change a statute into a content neutral statute. Thus, expanding the statute in order to save it.”
Unfortunately, the 9th circuit in Duguid v. Facebook, Inc., 926 F.3d 1146 (9th Cir. 2019), followed the 4th circuit, and held the government-backed debt exemption was unconstitutional, and cured it by simply severing the unconstitutional amendment, instead of striking down the whole TCPA. Now, in Grigorian v. Tixe Realty Servs., Case No: 19-81106-CIV-ROSENBERG/REINHART, 2019 U.S. Dist. LEXIS 198963 (S.D. Fl. Nov. 18, 2019) another district court has followed this severing approach giving further credence to this unorthodox solution. TCPAWorld will continue to vigilantly follow this trend as it percolates in the district courts, and beyond.