The Supreme Court on Monday upheld a major federal ban on robocalls to cellphones from 1991 while also striking down an exception to the law that Congress carved out in 2015. The net effect is that robocalls to cellphones without consent are still largely illegal, a ban that now applies to government debt collectors too. If you don’t have any government loans, this ruling won’t directly affect you. If you do, the ruling should help protect you from unwanted robocalls chasing you down for loan payments.
The law at the center of the case, Barr v. American Association of Political Consultants, is the 1991 Telephone Consumer Protection Act, a landmark piece of federal legislation that in part imposed a fine of up to $1,500 for any robocall or robo-text made to a cellphone without the recipient’s consent. Decades later, Congress would amend the TCPA in the Bipartisan Budget Act of 2015, making it legal to place robocalls to cellphones for the purposes of collecting debt owed to the federal government. “It was a budgetary move to raise money for the federal government, rather than a considered policy judgement,” said George Slover, a senior policy counsel for Consumer Reports who fought against the exception in 2015.* This was arguably the only major exception to the TCPA’s ban; the law does allow for robocalls in emergencies and for package delivery, but these provisions are less controversial.
The plaintiffs in the case were a group of political organizations that wanted the ability to make robocalls in order to fundraise, conduct polling, discuss candidates and issues, and get out the vote. Their lawyers sought to strike down the ban entirely, arguing that the amended TCPA violated the First Amendment because it was unconstitutionally regulating speech based on the content of the message. In other words, the 2015 exception ended up allowing the TCPA to favor government debt collection speech over other kinds of speech. The Trump administration, on the other hand, sought to uphold both the ban and the exception, maintaining that the government has a compelling interest to collect debt. (This is, notoriously, the case in which one of the Supreme Court justices audibly flushed a toilet during the livestreamed oral arguments in May.)
Justice Brett Kavanaugh, who authored the majority opinion, ended up ruling that the TCPA was indeed inappropriately banning some speech but not others based on content. As he wrote in the opinion, “A robocall that says, ‘Please pay your government debt’ is legal. A robocall that says, ‘Please donate to our political campaign’ is illegal. That is about as content-based as it gets.” His solution, however, was to throw out the bathwater and keep the baby. By simply doing away with the 2015 exception, Kavanaugh ruled that the TCPA could pass constitutional muster. He wrote, “Constitutional litigation is not a game of gotcha against Congress, where litigants can ride a discrete constitutional flaw in a statute to take down the whole, otherwise constitutional statute.”
Justices Stephen Breyer, Ruth Bader Ginsburg, and Elena Kagan would’ve upheld the robocall exception, framing it as typical commercial regulation rather than government censorship. Meanwhile, Justices Neil Gorsuch and Clarence Thomas agreed that the exception is unconstitutional but proposed a different fix. Rather than invalidate any part of the robocall law, they would bar the government from enforcing it against the plaintiffs in this case. But Kavanaugh’s view carried the day, so the debt exception is now effectively dead.
“I’m elated, to put it mildly,” Margot Saunders, senior counsel to the National Consumer Law Center, said of the decision. “No. 1, we preserved the only federal law that we have that provides meaningful restrictions on unwanted robocalls. No. 2, we get rid of the provision in that law has been the cause of an untold number of unwanted and privacy-invasive calls.” Saunders also previously fought against the TCPA exception while Congress was mulling it over in 2015, working with Massachusetts Sen. Ed Markey and California Rep. Anna Eshoo to get it removed from the budget bill. Those efforts and subsequent attempts to pass new laws doing away with the exception were ultimately unsuccessful. Saunders recalls that it was primarily student debt collectors who were lobbying for the provision at the time, as they were facing a number of robocall-related lawsuits. Once the law was passed, it also allowed for robocalls related to farm loans, veterans’ loans, business loans, and home mortgages.
It’s worth keeping in mind that the court’s decision currently only applies to contractors that the government has hired to collect debts on its behalf. The government has long maintained that it is not subject to the TCPA. While it makes sense for the government to, say, put out mass robocalls pertaining to the coronavirus, consumer advocates are still trying to prohibit federal agencies from being able to make automated debt collection calls themselves. “There is a difference between the government calling you and a hired gun calling you on behalf of the government,” said Slover. “They could continue to make calls on their own. That it is something that we have separately sought to address.”
And, as anyone with a cellphone knows, robocalls do still happen, legal or no. Despite numerous federal efforts to crack down on them, numbers keep rising—Americans received 58.5 billion robocalls last year, a 22-point increase from 2018.
Correction, July 6, 2020: This piece originally misspelled Consumer Reports.