Supreme Court Spills Milk, Refuses to Clean it Up With Latest TCPA Cert Denial

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Hi folks

Sorry for the limited content this week, I’ve been tied up at Leads Con. Spoke for 3 hours Monday–let me know if you want the deck–and turns out I was just getting started.

More pics soon I promise. (I know how you love that.)

In any event, figured I’d give a quick update on the Lindenbaum cert petition to the Supreme Court.

As I reported last week, the Supremes were set to meet on the 18th to discuss whether or not to review the Sixth Circuit’s ruling holding that AAPC retroactively saved the TCPA.

The backstory here is roughly as follows:

  • The First Amendment is supposed to protect the right of Americans to free speech
  • In AAPC, however, the Supreme Court held that the First Amendment really just guarantees equal speech. So the government can silence you, as long as it silences everyone else too. Good ruling.
  • The Lindenbaum appeal offered the Supremes a chance to fix the rather shortsighted approach taken in AAPC. But the Supremes decided they had better things to do than repair the First Amendment.

Really what the issue comes down to is whether a content-specific restriction on speech can be restored to content neutrality through the severance of content-specific exemptions, leaving the restriction to be enforced against everyone moving forward and against only disfavored speakers looking backward. 

Of course that sort of uneven enforcement is precisely what makes statutes unconstitutional in the first place. And since the TCPA is just the broadest restriction on constitutional speech in our nation’s history, one (literally just me) would think that the Supreme Court might be interested in evening out the enforceability of the statute both forward and backward in time. (Three years ago this sort of inaccessible time travel morass would have made me think of tachyons but now it makes me think of the MCU timeline.)

In any event, the Supreme Court is not taking up the Creasy issue. So unless the Ninth Circuit decides to take the issue head on and split with Lindenbaum we are stuck with courts enforcing the TCPA during timeframes that it was unenforceable, because the Supreme Court refused to get involved.

Of course, the TCPA remains unconstitutional owing to the fact that AAPC dealt with only a single content-specific exemption, but the TCPA remains full of other exemptions that are just as content-specific. But that issue will have to await another trip to the Supreme Court…

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Published by Eric J. Troutman

The Czar of TCPAWorld Eric Troutman is one of the country’s prominent class action defense lawyers and is nationally recognized in Telephone Consumer Protection Act (TCPA) litigation and compliance. He has served as lead defense counsel in more than 70 national TCPA class actions and has litigated nearly a thousand individual TCPA cases in his role as national strategic litigation counsel for major banks and finance companies. He also helps industry participants build TCPA-compliant processes, policies, and systems. Eric has built a national litigation practice based upon deep experience, rigorous analysis and extraordinary responsiveness. Eric and his team feel equally at home litigating multibillion dollar telecommunications class actions in federal court as they do developing and executing national litigation strategies for institutions facing an onslaught of individual TCPA matters. They thrive in each of these roles – delivering consistently excellent results – while never losing sight of the client experience. While many firms now tout TCPA expertise, Eric has been there from the beginning. He built one of the country’s first TCPA-only defense teams and began serving as national TCPA counsel for his clients nearly a decade ago. This perspective allows him to swiftly develop the right litigation strategies for dealing with recurring problems, without wasting time on tactics that are bound to fail. Eric’s rich historical perspective and encyclopedic knowledge of the TCPA landscape also make him an invaluable resource to institutional compliance teams struggling to comply with the shifting regulatory landscape. No task is too small – or too big. Indeed, Eric and his team have helped build TCPA-compliant systems and processes for some of the largest and most complex corporate entities in the country. He commonly works with in-house compliance counsel to build and implement enterprise and business-line specific TCPA solutions, performs TCPA audits and drafts and reviews proposed TCPA policies and procedures. He and his team also have the technical expertise necessary to assist call centers seeking to develop TCPA-resistant call path architecture or to modify existing telephony and software integration to better insulate from potential TCPA exposure. Eric has built a reputation for thought leadership. An avid blogger and speaker, he has been at the forefront of the industry’s effort to push for clarity and a return to sanity for the TCPA for years. He was selected to advocate for the financial services industry on important TCPA issues before the Federal Communications Commission and co-authored the nation’s only comprehensive practice guide on TCPA defense. In his spare time, Eric leads defense teams representing banks and other financial services companies in consumer finance litigation matters. He has experience representing clients in UCC, TILA, RESPA FCRA, CCRA, CLRA, FDCPA, RFDCPA and FCCPA claims, as well as in fraud and bank operations issues.

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