In LaGuardia v. Designer Brands, Inc., No. 2:20-cv-2311, 2021 U.S. Dist. LEXIS 97396 (S.D. Ohio May 24, 2021), Magistrate Judge Morrison rejected the Creasy holding on the constitutionality of the TCPA after Barr.
Since the AAPC decision was issued less than a year ago, district courts have split on the application of AAPC to TCPA claims arising between 2015-2020. Two courts have adopted DSW’s argument that the severability [*5] of the government debt exception is not retroactive so the entire statutory restriction was invalid during the time that the amendment was in effect.1Lindenbaum v. Realgy, LLC, 497 F.Supp.3d 290 (N.D. Ohio 2020), appeal filed, No. 20-4252 (6th Cir. 2020); Creasy v. Charter Commc’ns, Inc., 489 F. Supp. 3d 499, 508 (E.D. La. 2020). On the other hand, the better jurisprudence in this Court’s opinion is the conclusion reached by all other courts to consider the issue — that the other, constitutional restrictions contained in the TCPA continue to be enforceable for the time period of 2015 to 2020. Less v. Quest Diagnostics, Inc., F. Supp. 3d , No. 3:20 CV 2546, 2021 U.S. Dist. LEXIS 14320, 2021 WL 266548 (N.D. Ohio Jan. 26, 2021); Moody v. Synchrony Bank, No. 5:20-CV-61 (MTT), 2021 U.S. Dist. LEXIS 57853, 2021 WL 1153036 (M.D. Ga. Mar. 26, 2021); AAbramson v. Fed. Ins. Co., Case No. 8:19-cv-02523-TPB-AAS, 2020 U.S. Dist. LEXIS 232937, 2020 WL 7318953, at *2 (M.D. Fla. Dec. 11, 2020); Buchanan v. Sullivan, No. 8:20-CV-301, 2020 U.S. Dist. LEXIS 202519, 2020 WL 6381563, at *3 (D. Neb. Oct. 30, 2020); Schmidt v. AmerAssist A/R Sols. Inc., No. CV-20-00230-PHX-DWL, 2020 U.S. Dist. LEXIS 193358, 2020 WL 6135181, at *4 n.2 (D. Ariz. Oct. 19, 2020); Komaiko v. Baker Techs., Inc., No. 19-cv-03795-DMR, 2020 U.S. Dist. LEXIS 143953, 2020 WL 5104041, at *2 (N.D. Cal. Aug. 11, 2020); Burton v. Fundmerica, Inc., No. 8:19-CV-119, 2020 U.S. Dist. LEXIS 139299, 2020 WL 4504303, at *1 n.2 (D. Neb. Aug. 5, 2020). The general rule is that “an unconstitutional statutory amendment ‘is a nullity’ and ‘void’ when enacted, and for that reason has no effect on the original statute.” AAPC, 140 S.Ct. at 2353 (quoting Frost v. Corp. Comm’n of Okla., 278 U.S. 515, 526-27, 49 S.Ct.235, 73 L.Ed. 483 (1929)). The original statute at issue here, 47 U.S.C. § 227(b)(1)(A)(iii), had no constitutional defects prior to the 2015 amendment. So when the AACP Court concluded that it could sever the government debt exemption from the rest of § 227(b), that amendment was void at its inception in 2015 and had no effect on the pre-2015 text of the statute. In other words, the effect is as if the amendment had never happened and the pre-2015 statute’s enforceability is unaffected by the amendment.