In Williamson v. Irving K Motor Co. LLC, Civil Action No. 3:21-CV-1599-L-BH, 2022 U.S. Dist. LEXIS 101052, at *15-18 (N.D. Tex. June 7, 2022), Judge Ramirez denied a motion to dismiss a TCPA claim brought on the argument that SCOTUS’ AAPC rendered the TCPA unenforceable from 2015 to 2020.
A small number of district courts, including the Eastern Districts of Texas and Louisiana, have held that the entire robocall restriction was unconstitutional while the 2015 amendment was in place. See, e.g., Creasy v. Charter Commc’ns, Inc., 489 F. Supp. 3d 499, 502-03 (E.D. La. 2020) (“[T]he entirety of the pre-severance version of § 227(b)(1)(A)(iii) is void because it itself was repugnant to the Constitution before the Supreme Court restored it to constitutional health in AAPC.”); Cunningham v. Matrix Fin. Servs., LLC, 531 F. Supp. 3d 1164, 1180-81 (E.D. Tex. 2021) (concluding that § 227(b)(1)(A)(iii) “was unconstitutional from the moment Congress enacted the government-debt exception until the Supreme Court handed down its decision in AAPC” and the entire provision had “no legal effect” during that stretch of time). Defendant argues that the Court should follow the minority view that the entire robocall restriction was unenforceable “from the time of the exception’s enactment until the Supreme Court’s decision.” This position, however, “is squarely contradictory to AAPC.” See Cano, 2021 WL 3036933, at 8. As discussed, the Supreme Court found the government-debt exception to the TCPA was unconstitutional, but instead of invalidating the entire robocall restriction, it applied “traditional severability principles” and concluded that the proper course was to “sever the 2015 government-debt exception and leave in place the longstanding robocall restriction.” AAPC, 140 S. Ct. at 2355. It noted that the Act included a severability clause and explained that there is a presumption that “an unconstitutional provision in a law is severable from the remainder of the law or statute.” Id. at 2350. When an unconstitutional amendment has been added to a valid law, the “original, pre-amendment statute” is treated as the “‘valid expression of the legislative intent.'” Id. (quoting Frost v. Corporation Comm’n of Okla., 278 U.S. 515, 526-27, 49 S. Ct. 235, 73 L. Ed. 483 (1929)). This is because the unconstitutional amendment “is a nullity and, therefore, powerless to work any change in the existing statute.” Frost, 278 U.S. at 526-27. Because the 2015 amendment was an unconstitutional enactment, it was void ab initio and was never law. Cano, 2021 WL 3036933, at *8 (citing Trujillo v. Free Energy Sav. Co., LLC, No. 5:19-CV-02072-MCS-SP, 2020 WL 8184336, at *4 (C.D. Cal. Dec. 21, 2020)). “If the unconstitutional 2015 amendment was “‘a nullity’ and ‘void’ when enacted,” it stands to reason that the original robocall restriction was not impacted by the subsequent addition of the unconstitutional government-debt exception.”Callier, 2021 WL 8053527, at *12-13 (noting that this is the “same conclusion” reached by the majority of district courts that have addressed this issue) (citations omitted). Moreover, footnote 12 of the plurality opinion explicitly states that the decision did “not negate the liability of parties who made robocalls covered by the robocall restriction.” AAPC, 140 S. Ct. at 2355 n.12. “Although some district courts have interpreted footnote 12 as only dicta, even if it were only dicta, it still indicates that the entirety of the TCPA call restrictions should not be invalidated.” Samataro, 2021 WL 4927422, at *4 (citations omitted); see McCurley v. Royal Sea Cruises, Inc., No. 17-CV-00986-BAS-AGS, 2021 WL 288164, at *3 (S.D. Cal. Jan. 28, 2021) (“[T]his Court concludes that Justice Kavanaugh’s statement that [footnote 12] is not dicta because it was joined by six other justices. However, even if it was dicta, this Court finds it signals the intent of the Supreme Court and what it would hold in future cases and, as such, may not be cavalierly dismissed by a district court.”). As explained by a court in this district, the Supreme Court in AAPC held that “the law is Section 227(b)(1)(A)(iii) without the government-debt exception.” Cano, 2021 WL 3036933, at *9 (citing AAPC, 140 S. Ct. at 2356) (emphasis original). Concluding that § 227(b)(1)(A)(iii) without the government-debt exception applies retroactively “is consistent with the constitutional powers of the federal courts, principles of statutory interpretation, and the mandatory authority of AAPC and Frost.” Id. The well-reasoned opinion in Cano is persuasive and supports adoption of the majority view that TCPA’s robocall restriction without the government-debt exception remained in effect between 2015 and 2020, and its enforcement is constitutional. See Cano, 2021 WL 3036933, at *9; Horton, 2021 WL 5868328, at *3; Callier, 2021 WL 8053527, at *13; Samataro, 2021 WL 4927422, at *4; Thomas, 2021 WL 4127144, at *6-7; Pepper, 2021 WL 4084514, at *3 n.2; see also Lindenbaum, 13 F.4th at 528.