In the late 80's, telemarketers started using automatic dialing technology—called "autodialers"—to bombard consumers with robocalls. These calls were a nuisance, interrupting dinner and tying up residential and emergency lines
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Second argument today in #SCOTUS is Barr v. AAPC, which concerns the constitutionality of consumer robocall protections. My @EPICprivacy colleague @AlanInDC & I filed an amicus in the case. I'll be livetweeting. Here's a quick rundown of the case to help you follow along:
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So, in 1991, Congress enacted the Telephone Consumer Protection Act, or TCPA, which banned almost everyone from using autodialers without consent. Companies immediately challenged the law as an unconstitutional restriction on speech, but courts rejected these arguments
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In the 2000’s, cell phones began to replace landlines. Today, nearly every American owns a cell phone. Because we take these phones with us everywhere, and depend on them for many tasks, robocalls don’t just interrupt dinner—they can now interrupt every aspect of life
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In 2015—nearly 25 years after the TCPA’s enactment—Congress amended the TCPA to allow collectors of government backed debt to use autodialers. It is this provision that AAPC says is unconstitutional
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The Court will first decide whether the 2015 exemption violates the First Amendment. Laws that make content-based distinctions get more scrutiny than broad bans. Historically, commercial regulations were not scrutinized to the same degree as other laws that restrict speech
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But the Court has shifted on this, applying “strict” scrutiny even to some commercial regulations. Even so, the Court has only struck down statutes that target a small group of companies or do not promote a coherent policy. Neither applies here—TCPA still prohibits most robocalls
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If the Court decides that the 2015 exemption is unconstitutional, the Court must decide whether to sever the exemption or throw out the whole law. The Court looks to legislative intent, like a clause that tells Courts to sever. The TCPA has such a clause
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More fundamentally, Congress clearly would have enacted the TCPA without the 2015 exemption because it actually did, for 24 years. Nothing in the history of the TCPA or the 2015 amendment shows that Congress hinged the fate of the law on the existence of the 2015 exemption
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The stakes here are high. W/o the autodialer ban, consumer cell phones will be inundated with robocalls. Cell phones will become unusable. That is not what Congress intended. & that is why both appellate courts to decide issue severed the exemption instead of throwing out the law
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End of conversation
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