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A federal district court in Louisiana held this week that the TCPA is flat out unconstitutional as applied to any calls made between November 2015 and July 6, 2020.
Let me say that again. TCPA. Unconstitutional. As to all calls prior to July 6, 2020.
Still not doing it justice. A COURT JUST RULED THAT NO TCPA LAWSUITS ARE ALLOWED FOR CALLS MADE PRIOR TO JULY, 2020!
That’s the stuff.
This stunning result follows, of necessity from the Supreme Court’s ruling in Barr v AAPC, in which SCOTUS seemingly saved the TCPA after initially determining the content-based exemption for calls made to collect on government was unconstitutional. The decision is here: Biggest TCPA Ruling Ever
In AAPC the Supreme Court determined that the TCPA was unconstitutional. Full stop.
While the Supremes went on to sever the exemption that rendered the TCPA unconstitutional, that severance didn’t happen in the Creasy court’s view until July 6, 2020—the date the AAPC case was decided. So until that severance, the TCPA was fully and totally and completely unenforceable. As the court put it:
An unconstitutional statute being “as no law,” the Court may not enforce the pre-AAPC version of § 227(b)(1)(A)(iii)…
In essence, the Creasy court determined that AAPC cannot be applied retroactively. Calls that were made pre-AAPC were LEGAL and cannot be made illegal by a post hac action of the Supreme Court.
While Creasy makes a basic logical and chronological sort of sense, it doesn’t comport with the backward-lawyer way of thinking, which generally assumes that decisions by the Supreme Court do have a retroactive impact as clarifications of existing law. In other words, the traditional way to view AAPC is as if the Supreme Court was recognizing that the exemption had always been severable and, in fact, severed.
But Creasy looks at the mechanics. The exemption wasn’t severed—as a matter of actual objective fact—until July 6, 2020. And there is zero dispute that the TCPA was an unconstitutional little monster until that date. The Supreme Court said so.
So what does this mean for TCPA Defendants? EVERYTHING.
As Creasy preaches and practices, there is simply no jurisdiction for any district court to oversee TCPA cases for calls arising before July 6, 2020 (with maybe a chance for claims arising pre-November, 2015 if they were somehow tolled).
TCPA is dead. Again. For the first time.
But it’ll be back. Probably.
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