Part of Robocall Law is Unconstitutional, Judge Says

A federal judge in Ohio recently granted an energy and gas company’s request to toss out a TCPA lawsuit alleging robocall law violations, finding the calls were made at a time during which the statute had been amended by Congress to allow robocalls to collect federally-backed debts, before the Supreme Court struck down the exemption as unconstitutional.

The proposed class action lawsuit was filed against Realgy and ten unidentified corporations by plaintiff Roberta Lindenbaum on Dec. 11, 2019, in the U.S. District Court for the Northern District of Ohio, raising allegations that the company made two robocalls to her in violation of the Telephone Consumer Protection Act.

U.S. District Judge Patricia Gaughin dismissed Lindenbaum’s amended complaint on Oct. 29, 2020, determining that the court didn’t have jurisdiction to preside over the matter since the applicable statute was unconstitutional at the time the alleged TCPA violations occurred.

What Were the Arguments in the Robocall Lawsuit?

According to the claims in the lawsuit, Realgy left a prerecorded message on Lindenbaum’s cell phone and another on her landline after she filed the complaint. She contended that she never provided the company with her express written consent and accordingly, the calls were made in violation of the TCPA.

During the time that the suit was pending, the Supreme Court decided Barr v. American Association of Political Consultants, Inc., on July 6, 2020, which determined that the provision concerning the government-debt exception to the robocall law should be severed from the rest of the statute.

Realgy purported that at the time it allegedly made the robocalls, “the statute was facially invalid and cannot be enforced,” as written in Judge Gaughan’s opinion. Realgy further argued that severance of the portion rendered unconstitutional could only be applied “prospectively,” maintaining that the robocall law was enforceable during the time period prior to the date the government-debt exception was enacted and for calls made after the Supreme Court rendered its decision in the AAPC case, but not during the time frame at issue.

Lindenbaum asserted that the severance of the government-debt exception from the statute should be applied retroactively, arguing that only the one particular portion of the statute was invalidated rather than the robocall law in its entirety.

Judge Gaughan wrote in her decision granting Realgy’s motion to dismiss, “But for robocalls made from 2015 through entry of final judgment in AAPC, the statute remains unconstitutional on its face and cannot be enforced against any robocaller, including defendant.”

Judge Gaughan also stated in the opinion, “The Court cannot wave a magic wand and make that constitutional violation disappear. Because the statute at issue was unconstitutional at the time of the alleged violations, this Court lacks jurisdiction over this matter.”

The decision follows closely after a Louisiana federal judge rendered a similar opinion in a separate case alleging TCPA violations during the same period between the time Congress enacted the exception and the Supreme Court’s ruling on the matter. In Creasy v. Charter Communications, the judge also determined it didn’t have the authority to adjudicate the alleged TCPA violations for the same reason.

What Was the Unconstitutional Provision in the Robocall Law?

In the AACP case, the Supreme Court considered the constitutionality of an amendment to the TCPA enacted by Congress in 2015 that changed the statute’s language, allowing for an exception to the prohibition on robocalls to cellphones. The amended provision banned robocalls “‘unless such call is made solely to collect a debt owed to or guaranteed by the United States’ after ‘charged for the call.'” Effectively, the provision carved out an exception, allowing government-debt collectors to make robocalls.

The case was brought by political organizations that sought an injunction prohibiting enforcement of the revised provision to the robocall law, arguing that it was an unconstitutional content-based restriction favoring certain speech over other types of speech. The case made its way to the Supreme Court, which found that the government-debt exception was in fact a content-based restriction on speech in violation of the First Amendment, and severance of the provision from the rest of the statute was appropriate.

Are Robocalls Ever Legal?

According to the Better Business Bureau, 2,000 robocalls per second are placed to Americans’ phones. Frequently used by telemarketers and scammers to try to sell you something or gain personal information, robocalls can be invasive, annoying, and harassing. Unless a consumer gives prior express consent, robocalls are strictly prohibited under the TCPA. However, there are several exceptions to the robocall law.

Robocalls may be permitted by charities, for political campaigns, or informational purposes — such as delayed openings or weather alerts. Robocalls made by pharmacies may also be permissible to notify patients about their prescriptions, or by banks to let customers know about any activity on their account that might appear fraudulent.

The Robocall Law case is Lindenbaum v. Realgy, LLC et al., Case No. 1:19-cv-02862, in the United States District Court for the Northern District of Ohio.

Join a Free TCPA Class Action Lawsuit Investigation

If you were contacted on your cell phone by a company via an unsolicited text message (text spam) or prerecorded voice message (robocall), you may be eligible for compensation under the Telephone Consumer Protection Act.

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This article is not legal advice. It is presented
for informational purposes only.