Constitutional Challenges to the TCPA

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Whatever Happened to Creasy Anyway?: Here’s An Update on the Lopsided Status of the Ongoing Constitutional Challenges to the TCPA

by: Eric J. Troutman of Troutman Amin, LLP - TCPAWorld

Friday, May 7, 2021

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Not long ago you’ll recall we had the ACLU on the podcast to discuss their effort to defend the First Amendment in an ongoing TCPA challenge in the Sixth Circuit Court of Appeals.

The battle stems from the Supreme Court’s ruling in AAPC that determined the TCPA was unconstitutionally content-specific (i.e. it banned some speech and allowed other speech based upon content). For some reason the Courts think its ok to still enforce the TCPA—even though it was unconstitutional—against folks who were discriminated against (read: censored) back when the TCPA was content specific.

Ironically at least one court is also enforcing the statute against a party whose speech was legal at the time it was made—i.e. a speaker whose speech was specifically allowed—because it would be wrong to harm others who weren’t allowed to speak at the time.

So summing up: People who weren’t allowed to speak before—still not allowed to speak after AAPC. People who were allowed to speak—suddenly not allowed to speak after AAPC.

So, no one can speak.

Got it. Totally what the First Amendment says.

Anyhoo, here is a scoreboard of the rulings for and against the TCPA being enforceable back when it was unconstitutional.

Cases Finding TCPA Unconstitutional As Applied to Calls Made Between November, 2015 and July, 2020

Cunningham v. Matrix Fin. Servs., Civil Action No. 4:19-cv-896, 2021 U.S. Dist. LEXIS 62875 (E.D. Tex. March 31, 2021)
Hussain v. Sullivan Buick-Cadillac-Gmc Truck, Case No: 5:20-cv-38-Oc-30PRL, 2020 U.S. Dist. LEXIS 236577 (M.D. Fl. December 11, 2020)
Lindenbaum v. Realgy, Inc., Case No. 19 CV 2862, Doc No. 26 (N.D. Oh. Oct. 29, 2020)
Creasy v. Charter Communs., Inc., CIVIL ACTION NO. 20-1199 SECTION “F”, 2020 U.S. Dist. LEXIS 177798 (E.D. La. Sept. 28, 2020)

Cases Finding TCPA Constitutional As Applied to Calls Made Between November, 2015 and July, 2020

Lerner v. Solutions, Civil Action No. GLR-20-965, 2021 U.S. Dist. LEXIS 86161 (D. Md. May 5, 2021)
Pepper v. Life Protect 24/7, CIVIL ACTION NO. 4:20-CV-02154, 2021 U.S. Dist. LEXIS 56568 (S.D. Tex. March 1, 2021)
Agbim v. Zip Capital Group, Case No.: SACV 20-01920-CJC (DFMx), 2021 U.S. Dist. LEXIS 57056 (C.D. Cal. February 2, 2021)
Moody v. Synchrony Bank, CIVIL ACTION NO. 5:20-cv-61 (MTT), 2021 U.S. Dist. LEXIS 57853 (M.D. Ga. March 26, 2021)
Whittaker v. Winred Tech. Servs. Llc, No. CV-20-08150-PCT-JJT, 2021 U.S. Dist. LEXIS 55036 (D. Az. March 23, 2021)
Hossfeld v. Am. Fin. Sec. Life Ins. Co., CASE NO.: 0:19-cv-60597-GAYLES/STRAUS, 2021 U.S. Dist. LEXIS 59251 (S.D. Fl. March 29, 2021)
Mich. Urgent Care & Primary Care Physicians, P.C. v. Med. Sec. Card Co., 2:20-CV-10353-TGB, 2021 U.S. Dist. LEXIS 80823 (E.D. Mich. April 28, 2021)
Mey v. Medguard Alert, CIVIL ACTION NO. 5:19-CV-315, 2021 U.S. Dist. LEXIS 80083 (D.W.V. April 27, 2021)
Boisvert v. Carnival Corp., Case No: 8:20-cv-2076-30SPF, 2021 U.S. Dist. LEXIS 47397 (M.D. Fl. March 12, 2021)
Miles v. Medicredit, Inc., No. 4:20-CV-01186 JAR, 2021 U.S. Dist. LEXIS 44267 (E.D. Cal. March 9, 2021)
Bonkuri v. Grand Caribbean Cruises, Inc., Civ. No. 0:20-cv-60638-WPD, 2021 U.S. Dist. LEXIS 30940 (S.D. Fl. Jan. 19, 2021)
Rieker v. Nat’l Car Cure, LLC, Case No. 3:20cv5901-TKW-HTC, 2021 U.S. Dist. LEXIS 9133 (N.D. Fl. January 5, 2021)
Trullio v. Free Energy, 9-cv-02072-MCS-SP, Doc. No. 76 (C.D. Cal. Dec. 21, 2020)
Shen v. Tricolor Cal. Auto Group, CV 20-7419 PA (AGRx), 2020 U.S. Dist. LEXIS 237582 (C.D. Cal. December 17, 2020)
Abramson v. Fed. Ins. Co., Case No. 8:19-cv-2523-T-60AAS, 2020 U.S. Dist. LEXIS 232937 (M.D. Fl. December 11, 2020)