6th Cir. Says TCPA Still Enforceable Despite Period of Unconstitutionality

In Lindenbaum v. Realgy, Ltd. Liab. Co., No. 20-4252, 2021 U.S. App. LEXIS 27159, at *2-4 (6th Cir. Sep. 9, 2021), the Court of Appeals for the Sixth Circuit found that the District Court erred in dismissing a TCPA claim based on the period of unconstitutionality found in Barr.

In 1991, Congress prohibited almost all robocalls to cell phones and landlines. Barr v. Am. Ass’n of Pol. Consultants, Inc. (AAPC), 140 S. Ct. 2335, 2344, 207 L. Ed. 2d 784 (2020) (plurality opinion); 47 U.S.C. § 227(b)(1)(B). That seemed to change in 2015, when Congress attempted to enact an amendment to those broad prohibitions to allow robocalls if they were made “solely to collect a debt owed to or guaranteed by the United States.” 47 U.S.C. § 227(b)(1)(A)(iii), (b)(1)(B).  The amendment, however, was unconstitutional. So held the Supreme Court in AAPC. The Court determined that adding the exemption for government-debt robocalls would cause impermissible content discrimination. AAPC, 140 S. Ct. at 2347 (plurality opinion);  id. at 2357 (Sotomayor, J., concurring in the judgment); id. at 2363 (Gorsuch, J., concurring in part and dissenting in part). The Court also held that the exception was severable from the rest of the restriction, leaving the general prohibition intact. Id. at 2356 (plurality opinion); id. at 2357 (Sotomayor, J., concurring in the judgment); id. at 2363 (Breyer, J., concurring in part and dissenting in part). During its severability analysis, the three-justice plurality offered a brief footnote musing on the liability of parties who made robocalls between the exception’s enactment and the Court’s AAPC decision. Id. at 2355 n.12 (plurality opinion). Those justices [**3] thought that “no one should be penalized or held liable for making robocalls to collect government debt after the effective date of the 2015 government-debt exception,” but that their decision “does not negate the liability of parties who made robocalls covered by the robocall restriction.”1 Id.  In late 2019 and early 2020, Roberta Lindenbaum received two robocalls from Realgy, LLC advertising its electricity services. She sued, alleging violations of the robocall restriction. After the Supreme Court decided AAPC, Realgy moved to dismiss the case for lack of subject matter jurisdiction. The district court granted the motion. It reasoned that severability is a remedy that operates only prospectively, so the robocall restriction was unconstitutional and therefore “void” for the period the exception was on the books. Lindenbaum, 497 F. Supp. 3d at 298-99. Because it was “void,” the district court believed, it could not provide a basis for federal-question jurisdiction. Id. at 299. Lindenbaum timely appealed. The United States intervened in support of Lindenbaum to defend its statute.

The Court of Appeals disagreed, concluding that the reversal was pretty basic.

In 1982, the Supreme Court considered “[t]he principle that statutes operate only prospectively, while judicial decisions operate retrospectively” so obvious as to be “familiar to every law student.” United States v. Sec. Indus. Bank, 459 U.S. 70, 79, 103 S. Ct. 407, 74 L. Ed. 2d 235 (1982). Today, we clarify that severability is no exception. We reverse.