Robocall-hating consumers got a huge kiss from the U.S. Supreme Court on Monday morning, as the Court upheld a federal ban on robocalls to mobile phones and renounced a bid by political consultants who wanted that medium left open for campaign ads and the like.
Most consumers might think that a decision like that would be a slam dunk, but the Court was actually divided. In his framing of the decision, Justice Brett Kavanaugh wrote that an exception to the ban created by Congress is actually unconstitutional under the First Amendment, therefore allowing for the overall ban to remain in place.
“Americans passionately disagree about many things. But they are largely united in their disdain for robocalls. The Federal Government receives a staggering number of complaints about robocalls -- 3.7 million complaints in 2019 alone,” Kavanaugh wrote.
“The States likewise field a constant barrage of complaints. For nearly 30 years, the people’s representatives in Congress have been fighting back. As relevant here, the Telephone Consumer Protection Act of 1991 (TCPA) ... generally prohibits robocalls to cell phones and home phones. But a 2015 amendment to the TCPA allows robocalls that are made to collect debts owed to or guaranteed by the Federal Government, including robocalls made to collect many student loan and mortgage debts.”
This case concerns robocalls to mobile phones only. The plaintiffs in this case -- political and nonprofit organizations that want to make political robocalls to cell phones and smartphones -- leaned heavily on the First Amendment, arguing that the 2015 government-debt exception unconstitutionally favors debt-collection speech over political and other speech. To get out from under that restriction, the plaintiffs wanted the court to invalidate the entire 1991 robocall restriction, rather than just invalidating that exception.
The ax fell on robocalls to mobile phones thanks to the 1991 Telephone Consumer Protection Act (TCPA) a regulation that took the side of the consumer by trimming the use of automatic dialing systems and pre-recorded voice messages. TCPA had some serious bite -- a $1,500 fine for any call or text message made or sent without prior express consent -- but an exception was added in 2015 to excuse government debt collection services from that law.
The plaintiffs argued that the 2015 exception put both political consultants and government debt collectors on equal footing, but Kavanaugh was having none of that.
"Severing the 2015 government-debt exception cures the unequal treatment and constitutes the proper result under the Court's traditional severability principles," Kavanaugh wrote.
The other side weighs in
One of the plaintiffs in the matter -- the American Association of Political Consultants (AAPC) -- begged to differ with the court’s decision.
Alana Joyce, AAPC Executive Director, told ConsumerAffairs that its members and candidates are actually helping citizens.
“AAPC members help candidates and organizations effectively exercise their First Amendment right to free speech, the foundation of fair elections and citizen engagement in the legislative process,” Joyce said. “We are grateful that the Supreme Court recognized the importance of the First Amendment and the harms imposed by content-based restrictions on speech but are disappointed that the Court did not rule in favor of the AAPC entirely.”
Joyce said open questions still remain about what the TCPA means and how it applies to those who engage in First Amendment-protected policy and political discussions.
“We hope the Court grants review to resolve those issues in the pending Facebook case, addressing the proper interpretation of the TCPA’s autodialer definition. AAPC is committed to vigorously supporting our members' ability to deliver high quality, powerful services, through education, collaboration, and legal action where necessary. "
Have consumers already given their consent?
In essence, the Supreme Court said that you can’t restrict some robocalls and not others based on their content.
“This actually stops the government from making robocalls to try to collect government-related debt, like student loans, without consent,” YouMail CEO Alex Quilici told ConsumerAffairs. “In theory, it should reduce the number of robocalls, since now those debt calls will require consent from the called party.”
“However, the question is how many people have given consent for those calls without knowing it. I suspect not a lot, since a lot of student debt is ‘old’ and Congress wouldn’t have passed this exemption in 2015 if the government had had the necessary consent to make those calls at the time. The question is whether the student debt forms for more recent loans actually require checking a consent box to get the loans,” Quilici concluded.