In Hogans v. Charter Communs., Inc., No. 5:20-CV-566-D, 2021 U.S. Dist. LEXIS 182992, at *22-27 (E.D.N.C. Sep. 24, 2021), Judge Dever applied AAPC retroactively, and examined the various options for applying AAPC.
In AAPC, a majority of the Court left unanswered the question of retrospective liability under section 227(b)(1)(A)(iii) for the time period in which it was unconstitutional. Three possible answers to that question exist. First, a court could subject all robocalls, including those to collect government debt, to retrospective liability. See Brief of Amici Curiae Constitutional Law Professors, et al. at 8, Lindenbaum, No. 20-4252, 2021 U.S. App. LEXIS 27159 (6th Cir. Mar. 18, 2021), 2021 WL 4097320.2 Second, a court could subject all robocalls to liability but exempt from liability calls to collect government debt. See id. at 8-9. Third, a court could conclude “there can be no liability under the TCPA’s robocall ban during the operative period.” Id. at 9. The first solution would subject all robocalls during the operative period to liability, including those to collect government debt. However, to hold government-debt collectors liable post-AAPC for pre-AAPC robocalls to cell phones would impose liability for conduct that at the time seemed statutorily permitted. As for government-debt collectors, this result appears to contravene “[e]lementary considerations of fairness,” which “dictate that individuals should have an opportunity to know what the law is and to conform their conduct accordingly.” Landgraf v. USI Film Prods., 511 U.S. 244, 265, 114 S. Ct. 1483, 128 L. Ed. 2d 229 (1994); see Manning v. Caldwell for City of Roanoke, 930 F.3d 264, 273-74 (4th Cir. 2019) (en banc); Velasquez-Gabriel v. Crocetti, 263 F.3d 102,108 (4th Cir. 2001); Tasios v. Reno, 204 F.3d 544, 550 (4th Cir. 2000); cf. INS v. St. Cyr, 533 U.S. 289, 321, 121 S. Ct. 2271, 150 L. Ed. 2d 347(2001) (“As we have repeatedly counseled, the judgment whether a particular statute acts retroactively ‘should be informed and guided by “familiar considerations of fair notice, reasonable reliance, and settled expectations.”‘ (quoting Martin v. Hadix, 527 U.S. 343, 345, 119 S. Ct. 1998, 144 L. Ed. 2d 347 (1999))), superseded on other grounds 8 U.S.C. § 1252. At least three Justices in AAPC recognized this issue, and Justice Kavanaugh wrote for a plurality in footnote 12 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 and before the entry of final judgment by the District Court on remand in this case, or such date that the lower courts determine is appropriate.” AAPC, 140 S. Ct. at 2355 n.12. The second solution addresses the fair notice concern by subjecting all robocalls to liability, except for those made to collect government debt. At least three Justices in AAPC appear to have contemplated this result by suggesting that government-debt-collection calls made during this time are exempt from liability and then concluding in the same footnote that the decision “does not negate the liability of parties who made robocalls covered by the robocall restriction.” Id. On one hand, this result makes sense given that defendants such as Charter should have known their robocalls were not to collect government debt and were therefore prohibited by the general ban. On the other hand, during a portion of the putative class period at issue here, Charter’s actions were prohibited by a general ban that operated in tandem with an exception that rendered the general provision an impermissible content-based restriction on speech. Cf. Grayned v. City of Rockford, 408 U.S. 104, 107, 92 S. Ct. 2294, 33 L. Ed. 2d 222 & n.2 (1972) (vacating a defendant’s conviction after “consider[ing] the facial constitutionality Of the [law] in effect” at the time of the defendant’s arrest despite a later amendment that cured the law’s constitutional deficiencies). To impose liability on non-government-debt collectors during this period would thus enforce the same unconstitutional content-based discrimination that the AAPC decision corrects. See AAPC, 140 S. Ct. at 2366 (Gorsuch, J., concurring in the judgment in part and dissenting in part) (“[A] holding that shields only government-debt collection callers from past liability under an admittedly unconstitutional law would wind up endorsing the very same kind of content discrimination we say we are seeking to eliminate ” (emphasis in original)). Hogans contends that this court must follow footnote 12 because at leastlfive Justices endorsed the footnote’s reasoning. See [D.E. 19] 23-26. The court disagrees. See Lindenbaum, 2021 U.S. App. LEXIS 27159, 2021 WL 4097320, at *1 n. 1. Only three Justices joined Part III of Justice Kavanaugh’s opinion, which included footnote 12. See AAPC, 140 S. Ct. at 2343, 2348-56 (plurality opinion). “When a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds.” Marks v. United States, 430 U.S. 188,193, 97 S. Ct. 990, 51 L. Ed. 2d 260 (1977) (quotation omitted). Here, the narrowest ground for the decision’s remedy is that five Justices agreed to sever the provision without agreeing [*26] on why it should be severed or the effect of the severance. Justice Sotomayor agreed “that the offending provision is severable.” AAPC, 140 S. Ct. at 2357 (Sotomayor, J., concurring in the judgment). Justices Breyer, Ginsburg, and Kagan similarly agreed “with Justice Kavanaugh’s conclusion that the provision is severable.” Id. at 2363 (Breyer, J., concurring in the judgment with respect to severability and dissenting in part). The concurring Justices gave no reasoning for their conclusion that the government-debt exception was severable and did not address the issue of retrospective liability. Having reviewed governing Supreme Court precedent and the Sixth Circuit’s recent decision in Lindenbaum, this court holds that AAPC applies retroactively. Federal courts exist to decide particular cases and controversies by saying what the law is. See Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 218-19, 115 S. Ct. 1447, 131 L. Ed. 2d 328 (1995); Marbury, 5 U.S. at 177. Severance is a judicial act that declares what the law is, if anything, after the court has identified and disregarded unconstitutional enactments See Collins, 141 S. Ct. at 1788-89 (“[T]he Constitution automatically displaces any conflicting statutory provision from the moment of the provision’s enactment”); Massachusetts v. Mellon, 262 U.S. 447, 488, 43 S. Ct. 597, 67 L. Ed. 1078 (1923) (“[T]he power exercised is that of ascertaining and declaring the law . . . . It amounts to little [*27] more than the negative power to disregard an unconstitutional enactment”); Lindenbaum, 2021 U.S. App. LEXIS 27159, 2021 WL 4097320, at *2. Severance is a legal interpretation explaining what the law “has meant continuously since the date when it became law.” Rivers, 511 U.S. at 313 n.12; see Lindenbaum, 2021 U.S. App. LEXIS 27159, 2021 WL 4097320, at *2. This court must apply the governing legal interpretation in AAPC to all cases pending on direct review. See Harper, 509 U.S. at 97; Etape, 497 F.3d at 387-88; Hemelt, 122 F.3d at 208. Because AAPC applies retroactively, the general robocall ban applied during the time period when Hogans alleges that Charter sent her and members of her putative classes the unwanted calls, voice mail messages, and text messages at issue. Thus, under AAPC, Hogans has plausibly alleged that Charter violated the TCPA. Accordingly, the court denies Charter’s motion to dismiss under Rule 12(b)(6).