Lots going on in TCPAWorld folks.
I know Facebook is overshadowing Creasy at the moment, but for many businesses facing a combined trillions in exposure for calls between 2015 and 2020 the constitutionality of the TCPA remains of paramount importance.
I’m not going to lie—its been pretty bleak out there recently with a pile of recent decisions rejecting Creasy. (We haven’t even been able to keep up with all of them in light of the resources Facebook is commanding.)
But a HUGE and critical ruling came down in the shadow of Facebook last week that shows Creasy is still very much alive in some jurisdictions.
In Cunningham v. Matrix Fin. Servs., Civil Action No. 4:19-cv-896, 2021 U.S. Dist. LEXIS 62875 (E.D. Tex. March 31, 2021) the district court rejected a magistrate judge’s recommendation denying a motion to dismiss on Creasy grounds.
The Court carefully analyzed severance in the context of the First Amendment and concluded that permitting TCPA cases to proceed on a content-specific basis would result in unconstitutionally regulating speech. As such, the court finds “the necessary conclusion is that § 227(b)(1)(A)(iii) was unconstitutional from the moment Congress enacted the government debt exception until the Supreme Court handed down its decision in AAPC. In other words, during that stretch of time, § 227(b)(1)(A)(iii) had no legal effect.”
This is a huge ruling and the Court was not blind to its impact: “The Court understands the effect of its decision, particularly that Cunningham (and others similarly situated) are no longer able to seek relief from the Court for this specific subset of TCPA violations. Nevertheless, the Court cannot “formulate new law or pass judgment upon what the law should be, for ‘judicial power is never exercised for the purpose of giving effect to the will of the Judge’ but instead is exercised only to give effect ‘to the will of the law.”
The issue remains on appeal to the Sixth and Ninth Circuit Courts of Appeals, and district courts have begun granting interlocutory appeals and stays pending the outcome of these cases.
Notably the ACLU submitted an amicus brief in support of Creasy to the Sixth Circuit and joined Unprecedented to discuss why preventing the TCPA’s unconstitutional application is so critical to protect American’s First Amendment rights. Look for that interview to drop this week here on TCPAWorld.com.