No News is Good News?: Supremes Stay Silent on Two Key TCPA Cert Petitions–Squire’s Appellate & Supreme Court Practice Explains It

Super busy day for me but I wanted to take a second to keep you all updated on the Supreme Court TCPA review.

As readers of know, the US Supreme Court is all set to review the TCPA on First Amendment grounds this term. Specifically, the Supremes will determine whether the TCPA’s government-backed debt exemption is content-specific (it is) and whether that means the statute’s speech restrictions must be struck down (yes) or whether the exemption can merely be stricken to save the statute (no).

Two other related, but slightly different, petitions are currently pending before the Supreme Court that also ask the Court to review the impact of the First Amendment on the TCPA–one filed by Charter and one filed by Facebook. The Facebook petition, in particular, is interesting because it asks the court to review the Marks decision in addition to the the First Amendment angle. Reviewing the TCPA’s ATDS decision may become more tantalizing for the High Court now that the circuits became splitier yesterday.

Well the Supreme Court justices met last Friday in their standard super secret meeting–called a “private conference” in the business– to determine what cases to review and  when the white smoke came out many, many, cert. requests were denied. You can see the list here.

So what of the Facebook and Charter appeals? Well. They weren’t on the list, although they were slated for discussion at this conference.

How can that be? Did the Supremes just overlook these two petitions?

“Of course not” explains Benjamin Beaton, co-chair of Squire’s deep-strength Appellate & Supreme Court Practice. “Occasionally the Court will ‘hold’ related petitions when it is already considering a related case brought up on a separate petition. The result for the ‘held’ petitions is they are not addressed directly until after the lead case is decided.”

So does that mean Charter and Facebook won’t directly have their say?

“It is still possible that the Court grants a separate hearing to these petitioners. Perhaps more likely is that these petitions will stay in limbo pending the Supreme Court’s ruling in AAPC. Then the Court would remand these decisions to the Ninth Circuit for further proceedings consistent with the reasoning in AAPC.”

So there you have it folks. No news is sort of good news for the TCPA.


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