As the Czar just explained yesterday, the big SCOTUS TCPA review is likely to have profound impact on the scope of the TCPA–and possibly our freedom to speak more broadly. 

On February 25, 2020, another district court stayed a TCPA class action pending the Supreme Court’s resolution of Barr v. Am. Assoc. of Political Consultants, No. 19-631. In Seefeldt v. Entm’t Consulting Int’l, Case No. 19-cv-001888, 2020 U.S. Dist. LEXIS 31815, the court granted the  defendant’s motion to stay the case pending the Supreme Court’s decision in Barr, finding that “the best approach is to wait for much-needed clarity from the Supreme Court.” Id. at *9.

In Seefeldt, the plaintiff filed a class action complaint alleging that the defendants’ texting program promoting specials and events at a brew house violated the TCPA. The court began its analysis of the defendants’ motion to stay by noting that “[t]he TCPA has been the subject of much appellate discourse lately,” including decisions by the Fourth Circuit (Am. Assoc. of Political Consultants, Inc. v. FC.C., 923 F.3d 159 (4th Cir. 2019)) and Ninth Circuit (Duguid v. Facebook, 926 F.3d 1146 (9th Cir. 2019)) striking down the TCPA’s government-debt exception as unconstitutional but severing it. As the Seefeldt court noted, the TCPA “risks a potential total collapse” depending on how the Supreme Court rules on the constitutional challenge to the government-debt exception and the proper remedy if found unconstitutional. Id. at *5, 8.

Reviewing recent decisions from the Seventh, Ninth and Eleventh Circuits on the definition of ATDS, the court also noted that “appellate courts have been unable to agree on the exact definition to give to an ‘autodialer’ that lies at the heart of the TCPA’s prohibitive mandates.” Id. at *3. As the court noted “the Supreme Court has not revealed its hand whether it will also take up review of the definitional problem” of ATDS, which was presented in the Duguid petition but has not yet been ruled upon by the court, “[b]ut, without a doubt, it creates much more uncertainty about the TCPA at large and, specifically, the viability of [the] plaintiff’s claims.” Id. at *8.

Given the uncertainty created by the constitutional challenge and the TCPA’s definitional problem, the court exercised its “inherent power” to stay the case. The court’s decision was partially influenced by a recent decision in the Western District of Missouri in a similar case against the same defendants denying class certification and granting summary judgment. See Beal v. Outfield Brew House, LLC, 2020 WL 618839 (W.D. Mo. Feb. 10, 2020). The court found that the decision in Beal favors a stay because itsuggests that the defendants have a likelihood of success in this case and that the public interest will not be harmed. The court also noted that the fact that the case was relatively “young” also favored a stay, as staying the case could “avoid exhausting judicial resources to decide things like [the] defendants’ multifaceted motion to dismiss, the plaintiff’s pending motion for class certification, and any possible discovery-related matters or summary judgment motions to follow which may prove fruitless.” Id. at *11.

Finally, as the court noted, a decision from the Supreme Court – as least on the constitutionality of the TCPA – will likely come this term, and oral argument in the Barr case has been set for April 22, 2020. We at TCPAWorld have already marked our calendars for this important event! Until then, we will continue to monitor the TCPA landscape and whether other courts are taking a wait-and-see approach to the TCPA.