This month, the Supreme Court handed down a victory for cell phone users (which is practically all of us these days) in Barr v. American Association of Political Consultants, Inc. The case concerns the Telephone Consumer Protection Act of 1991 (“TCPA”). Under the Act, anyone who makes an unsolicited robocall or text message can be liable to the recipient for up to $1,500 in damages per call. Class action liability could be staggering. The plaintiffs in the case had asked the Court to invalidate this provision of the statute entirely. Fortunately for all Americans, the Court stood with consumers.
As the Court recognized, Congress passed the TCPA to combat a recent tsunami of robocalls. Senator Ernest “Fritz” Hollings, a sponsor of the Act colorfully described robocalls as “the scourge of modern civilization. They wake us up in the morning; they interrupt our dinner at night; they force the sick and elderly out of bed; they hound us until we want to rip the telephone right out of the wall.” 137 Cong. Rec. 30821 (1991). Senator Hollings’s words ring even more true 29 years later in the captive, cooped-up era of Covid-19.
Congress’s response was the TCPA, with its strong penalties and strict liability. For nearly a quarter century, the Act sat fundamentally undisturbed. It also produced several monster judgments and settlements. See, e.g., Birchmeier v. Caribbean Cruise Line, Inc. (N.D. Ill.) ($76 million settlement); Perez v. Rash Curtis & Associates, (N.D. Cal.) ($267 million judgment); Hoipkemier v. Wells Fargo Bank, N.A., (N.D. Ill.) ($17.85 million settlement).
But, in 2015, Congress revised the Act. Those revisions sought to carve out calls made to collect debts owed to or guaranteed by the United States (think student debt and home loans, among other things). The plaintiffs in the present case, the American Association of Political Consultants, argued that this revision impermissibly favored some kinds of speech—that designed to collect debts owed to the government—from others—including speech on behalf of their political clients.
Earlier this month, the Supreme Court agreed that the 2015 revisions impermissibly favored some kinds of speech, but disagreed with the plaintiffs over the remedy. Instead of invalidating the entire TCPA—and ushering in another scourge of calls, as the political consultants had urged—the Court instead struck down the 2015 revision and closed the loophole Congress sought to enact.
The Court’s ruling was also important, though, for what it seemed to take for granted: The Court affirmed that “the TCPA prohibited almost all robocalls to cell phones.” Op. at 3. Previously, in the federal courts of appeal, several defendants had sought to read the Act narrowly—as only prohibiting calls to cellphones for which the consumer was charged extra for the call. See, e.g., Osorio v. State Farm Bank, F.S.B., 746 F.3d 1242, 1256 (11th Cir. 2014). Justice Kavanaugh’s controlling opinion, however, casts doubt on that position. And Justice Gorsuch’s concurring opinion is yet more explicit that even though “cell phone users often pay a flat monthly fee for unlimited minutes, reducing the cost (if not the annoyance) of hearing from robocallers,” the Act still prohibits the calls, whether or not the recipient has not had “the privilege of paying for them.” Gorsuch Op. at 1-2.
What does this mean for cell phone users? The TCPA is alive and well. If you get a robocall on your cellphone, odds are you are entitled to damages. You should consult a civil litigation attorney in DC, New York, California, Tennessee, or Maryland. And the fact that the call may be trying to collect a federally backed debt is no excuse. As Justice Gorsuch points out, there is “no shortage of material. The government backs millions upon millions of loans—student loans, home mortgages, veterans’ loans, farm loans, business loans.” Id. at 2. These—and every other kind of robocall—are all forbidden absent consent. Calls based on any of these could be the basis for a consumer fraud lawsuit in DC, New York, California, Tennessee, or Maryland under the TCPA or any number of other statutes.