In Creasy v. Charter Commc’ns, Inc.,[1] a federal judge ruled that autodialed calls and text messages made during the past five years are not actionable under the TCPA. The logic in this novel order constitutes a bold, dispositive line of attack for TCPA defendants facing allegations for calls made during the last five years.

The fact pattern in Creasy is typical of most TCPA cases. The putative class plaintiffs alleged that Charter Communications violated § 227(b)(1)(A)(iii) of the TCPA by sending at least 130 autodialed calls and texts without consent. All but one of the violations allegedly occurred between 2015 and July 6, 2020, when the government-debt exception remained in place.[2]

In a motion to dismiss, Charter argued that the TCPA was unconstitutional until the Supreme Court severed the governmentdebt exception, and that the district court, therefore, lacked subject matter jurisdiction to enforce violations of an unconstitutional law. Charter acknowledged that a clear majority of the Supreme Court — seven Justices — concluded that “the correct result in this case is to sever the 2015 government-debt exception and leave in place the long-standing robocall restriction.”[3] But Charter argued that severance of the government-debt exception only permitted the automated-call ban to be enforced prospectively. In essence, Charter argued the entire robocalling restriction was unconstitutional — and therefore unenforceable — during the time the government-debt exception remained in force.

The plaintiffs countered that Charter misrepresented AAPC’s holding and ignored its severability analysis. According to the plaintiffs, the Supreme Court considered the issue and declined to find “the entire 1991 robocall restriction unconstitutional.”[4] Although six justices found the government-debt exception unconstitutional, seven Justices agreed that, especially given the TCPA’s severability clause, the unconstitutional government-debt exception could be severed without invalidating the TCPA’s automated-call ban. As additional support, the plaintiffs pointed to a footnote in Justice Kavanaugh’s concurrence (joined by Justices Thomas and Gorsuch) stating that “no one should be penalized or held liable for making robocalls to collect government debt” between the effective date of the exception and entry of final judgment, and “[o]n the other side of the ledger, our decision today does not negate the liability of parties who made robocalls covered by the robocall restriction.”

The district court agreed with Charter and found that the TCPA provision prohibiting robocalling cellular telephones without consent was unconstitutional from 2015 (when Congress added the government-debt exception) until July 6, 2020 (when the Supreme Court severed the exception) in Barr v. AAPC. The court reasoned that AAPC contained two binding holdings: (1) the government-debt exception should be invalidated and (2) the entire robocall restriction should not be invalidated, but rather the government-debt exception must be invalidated and severed from the remainder of the statute. Although the court acknowledged that Judge Kavanaugh’s footnote “is extremely persuasive authority,” it concluded it was neither binding nor persuasive.[5] Instead, the court found Justice Gorsuch’s concurrence more persuasive. Justice Gorsuch directly addressed Justice Kavanaugh’s concurrence, arguing that shielding “only government-debt collection callers from past liability” would “wind up enforcing the very same kind of content discrimination we say we are seeking to eliminate.”[6] The court agreed with Justice Gorsuch and rejected the plaintiff’s argument that the government-debt exception ”has no bearing on the constitutionality of the rule.”[7] Instead, it found that “the exception and the rule are in fact inextricably intertwined,” and the addition of the government-debt exception fundamentally altered the entire provision.[8] Ultimately the court concluded because the government-debt exception was an unconstitutional content-based restriction on speech, the addition of the government-debt exception to § 227(b)(1)(A)(iii) “converted a theretofore neutral speech restriction into an invalid content-discriminatory one.”[9]

The district court characterized the severability function as a remedy for the wrong “experienced by Charter and all other robocallers (or would-be robocallers) whose constitutionally protected speech was outlawed while Congress affirmatively blessed robocalls of other content in violation of the First Amendment.”[10] The court acknowledged the public policy consequences of its decision — potentially allowing Charter and other alleged robocallers to evade liability — but concluded that “[i]t is for the elected branches, and not this court, to determine whether that price is unduly high.”[11] Accordingly, the court granted Charter’s motion to dismiss for lack of subject matter jurisdiction.

The big question now is how willing other courts will be to follow the logic in Creasy. We can expect an appeal to the Fifth Circuit. Moreover, the way federal courts have dealt with other thorny issues under the TCPA suggests there will be widespread disagreement on whether consumers should be able to sue for unwanted calls and texts sent during the past five years. Yet another circuit split will likely develop around this emerging TCPA issue.

Endnotes

1 Creasy v. Charter Commc’ns, Inc., CV 20-1199, 2020 WL 5761117, at *1 (E.D. La. Sept. 28, 2020).

2 2020 WL 5761117 at *2.

3 Barr v. AACP, 140 S. Ct. at 2355.

4 140 S. Ct. at 2348-49.

5 2020 WL 5761117 at *5.

6 AAPC, 140 S. Ct. at 2366 (emphasis in original).

7 2020 WL 5761117.

8 Id.

9 Id.

10 Id. at *6.

11 Id.