On January 10, the Supreme Court issued an order granting review in Barr v. American Association of Political Consultants. The case involves the Telephone Consumer Protection Act (TCPA), and it presents the issue of whether the government debt-collection exemption to the "autodialer" provision violates the First Amendment's Freedom of Speech Clause.
Previously, the U.S. Court of Appeals for the Fourth Circuit struck down the TCPA's carve out for government debt collection on First Amendment free speech grounds. The Fourth Circuit determined that the TCPA's government debt-collection exemption amounts to a content-based restriction of speech. It further determined that exemption was not narrowly tailored to further a compelling governmental interest but "fatally underinclusive": "First, by authorizing many of the intrusive calls that the automated call ban was enacted to prohibit, the debt-collection exemption subverts the privacy protections underlying the ban. Second, the impact of the exemption deviates from the purpose of the automated call ban and, as such, it is an outlier among the other statutory exemptions." According to the Fourth Circuit: "The exemption thus cannot be said to advance the purpose of privacy protection, in that it actually authorizes a broad swath of intrusive calls. In so doing, the debt-collection exemption exposes millions of American consumers to some of the most disruptive phone calls they receive."
In Bar v. AAPC, the Supreme Court will have the final word on the TCPA exemption's constitutionality. Clearly, Barr v. AAPC has important First Amendment implications. But the Supreme Court's forthcoming ruling will not likely touch on pressing legal uncertainty problems involving other aspects of the TCPA that Free State Foundation President Randolph May and I have addressed in prior Perspectives from FSF Scholars papers (available here and here).
We recommend that the FCC ought to adopt rules to clarify the definition of an "autodialer" under the TCPA. In particular, the Commission should clarify that consumers don't become "autodialers" merely by placing a single call or text from a saved number in their smartphones. Clarifying rules of that sort are not content-based speech restrictions and can thus be adopted consistent with First Amendment free speech precedents.