District Court Holds TCPA’s Autodialer and Pre-Recorded Message Provision Unconstitutional and Unenforceable as Applied to Calls Made Between November 2015 and July 2020

On September 28, 2020, on an issue of first impression, a federal district court in Louisiana held that the TCPA’s autodialer and pre-recorded message provision (the “automated-call ban”) is unconstitutional as applied to any calls made between November 2015 and July 6, 2020. If adopted by other courts, the reasoning of this decision could end the majority of TCPA litigation across the country, given that most pending cases involve plaintiffs who received calls or text messages in alleged violation of the automated-call ban during this window of time.

The case at issue is Creasy v. Charter Communications, Inc., No. 20-1199, 2020 WL 5761117, — F.Supp.3d —- (E.D. La. Sept. 28, 2020). The court in Creasy based its decision on the Supreme Court’s ruling in Barr v. AAPC, 140 S Ct. 2335 (2020), in which the Supreme Court held that the automated-call ban, as amended in 2015 to exempt certain government debt collectors, was unconstitutional under the First Amendment. However, instead of invalidating the ban, the Supreme Court “fixed” the constitutional problem by severing the content-based exception for government debt collectors.

In Creasy, the court ruled that federal courts lack subject matter jurisdiction to enforce the automated-call ban during the pre-severance period because, under AAPC and basic First Amendment principles, the automated-call ban was unconstitutional during this period of time: “the entirety of the pre-severance [automated-call ban] is void because it itself was repugnant to the Constitution before the Supreme Court restored it to constitutional health in AAPC.”  2020 WL 5761117, at *5. The court in Creasy also noted “that defendants may evade liability for robocalls that Congress would have preferred to ban from 2015 to 2020 is the unfortunate price of the Court’s enforcement of a constitutionally dictated result.” Id. at *6.

The issue in Creasy—whether the automated-call ban is enforceable for robocalls from November 2015 to July 2020—implicates hundreds of billions of dollars in potential TCPA penalties in pending and not-yet-filed TCPA litigation. With so much at stake, this argument likely to be the subject of significant further litigation.

These materials were written for the Consumer Financial Services Committee by co-chair Paul A. Grammatico of Kabat Chapman & Ozmer LLP. For more information, please contact Paul at (213) 493-3988 or via email at pgrammatico@kcozlaw.com.

Editor’s Note: Kabat Chapman & Ozmer represents Charter Communications, Inc. in Creasy.