TCPA Quick Hitter: Another Court Rejects Creasy and I’m Getting Bored

You know how sometimes a game is billed as a huge deal and then one quarterback goes and destroys the other team and by the end of the game you can’t watch it because its boring?

Like the super bowl this year when Brady went all “EJT”–that’s a saying now– on the Chiefs?

Well that’s sort of what’s happening with the Creasy argument.

This should have been a pretty evenly matched game. Both sides have a pretty compelling case—although the better reasoned view is plainly in favor of the view that an unconstitutional statute cannot be enforced. Still the situation calls to mind the old battle over the scope of ACA Int’l where the D.C. Circuit Court of Appeals set aside the 2003 and 2008 TCPA ATDS rulings, except maybe it didn’t. Following ACA Int’l there was a huge—and mostly evenly-matched—brouhaha in the courts trying to determine exactly what the impact of the ACA Int’l ruling really was on the TCPA.

AAPC was similar to ACA Int’l in that if you look at it one way, the Court very plainly declared the TCPA unconstitutional. But if you look at it another way, the Court very plainly held that the statute was still enforceable. Those two things are pretty contradictory, unless the TCPA was held to only be enforceable on a prospective basis. Which is what Creasy held.

Still, ruling a statute cannot be enforced because it is unconstitutional is a pretty big swing for most district courts and no one should be surprised that courts are splitting on the issue.

But what is surprising is that so many courts are now lining up against Creasy. This is like an underdog not just winning the game but blowing out the favorite.

For instance, lexis just picked up Bonkuri v. Grand Caribbean Cruises, Inc., Civ. No. 0:20-cv-60638-WPD, 2021 U.S. Dist. LEXIS 30940 (S.D. Fl. Jan. 19, 2021), which refuses to follow Creasy. By my unofficial count—which is not (yet) binding in Court—that makes the score 8-3 in favor of the anti-Creasy camp. Indeed, the Archduke’s huge win in Hussain remains the last time the defense team has scored a point.

We’ll keep an eye on this one, even though its getting pretty dull in the late innings.

Rally cap anyone?




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