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Fourth Circuit Strikes Down Key TCPA Defense on Free Speech Grounds

The Fourth Circuit Court of Appeals (governing the application of federal law in North Carolina, South Carolina, Virginia, West Virginia, and Maryland) yesterday struck down a key provision of the Telephone Consumer Protection Act relating to the collection of government-backed debts on First Amendment grounds. 

The lawsuit challenged a 2015 amendment to the TCPA which exempted collection activity relating to government-backed debts from TCPA liability in connection with calls placed using an automatic telephone dialing system (ATDS).  The Fourth Circuit deemed the exemption a content-based speech regulation under the First Amendment because, under the law, calls about a government-backed debt were treated differently from calls about other types of debts.  As a content-based speech restriction, the court subjected the law to a high degree of scrutiny under the First Amendment.   

The Court found that the law violates the First Amendment.  Importantly, however, the Court did not strike down the entirety of the TCPA’s restrictions relating to the use of an ATDS.  Instead, the court opted to “sever” the portion of the statute relating to government-backed debts, striking it down while keeping intact the rest of the law.   

As a result, within the Fourth Circuit’s jurisdiction, debt collectors pursuing government-backed accounts (typically student loans) can no longer rely on the 2015 exemption as a defense to TCPA liability.    

The case is Am. Ass’n of Political Consultants, Inc. v. FCC, No. 18-1588, 2019 WL 1780961 (4th Cir. Apr. 24, 2019). 

Mark RooneyTCPA, ATDS