Am. Ass'n of Political Consultants, Inc. v. Fed. Commc'ns Comm'n
923 F.3d 159
4th Cir.2019Background
- The TCPA prohibits automated or prerecorded calls to cell phones, but historically included two exemptions: emergency and prior-express-consent; in 2015 Congress added an exemption for calls "made solely to collect a debt owed to or guaranteed by the United States" (debt-collection exemption).
- Plaintiffs (American Association of Political Consultants and others) sued, alleging the debt-collection exemption is a content-based, First Amendment violation and not severable from the automated-call ban.
- The district court treated the exemption as content-based but upheld it under strict scrutiny and granted summary judgment to the Government; Plaintiffs appealed.
- The Fourth Circuit reviewed de novo, agreed the exemption is content-based (thus strict scrutiny applies), and evaluated whether it survives that standard and whether severance is appropriate.
- The panel held the exemption fails strict scrutiny because it is fatally underinclusive (it authorizes a broad category of intrusive calls that undermine the privacy interest the TCPA protects) but ordered the exemption severed from the rest of the automated-call ban.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is the debt-collection exemption content-based? | Exemption draws facial distinctions based on subject matter (calls about federal-guaranteed/owed debt) and thus is content-based. | Exemption targets the relationship between caller and recipient (nexus to government-debtor relationship), not content. | Held: Exemption is content-based on its face; application depends on call content. |
| What level of scrutiny applies? | Strict scrutiny applies to content-based restrictions. | Government argued for intermediate scrutiny as content-neutral. | Held: Strict scrutiny applies. |
| Does the exemption survive strict scrutiny? | Exemption does not survive: it is underinclusive and undermines the compelling privacy interest; less-restrictive alternatives exist. | Exemption furthers compelling interests (privacy; government fiscal interest) and is narrow. | Held: Exemption fails strict scrutiny—fatally underinclusive and incompatible with TCPA's privacy purpose. |
| Remedy: sever or invalidate entire ban? | Plaintiffs: flaw requires invalidating whole automated-call ban (no severance). | Government: sever the problematic exemption and leave remainder intact; severability clause of TCPA supports this. | Held: Sever the debt-collection exemption and leave the automated-call ban otherwise operative; judgment for Government vacated and remanded. |
Key Cases Cited
- Reed v. Town of Gilbert, 135 S. Ct. 2218 (content-based regulation triggers strict scrutiny)
- McCutcheon v. FEC, 572 U.S. 185 (strict-scrutiny tailoring requirement and "highest order" interests)
- Campbell-Ewald Co. v. Gomez, 136 S. Ct. 663 (United States and its agencies not subject to the TCPA)
- Free Enter. Fund v. Pub. Co. Accounting Oversight Bd., 561 U.S. 477 (preference for partial invalidation/severance)
- NFIB v. Sebelius, 567 U.S. 519 (leave remainder of statute intact when severing flawed provision)
- Ayotte v. Planned Parenthood of N. New Eng., 546 U.S. 320 (severance to limit constitutional ruling's scope)
- United States v. Playboy Entm't Grp., Inc., 529 U.S. 803 (requirement to use less-restrictive alternatives for content-based restrictions)
- Williams-Yulee v. Florida Bar, 135 S. Ct. 1656 (underinclusive carveouts can undermine asserted compelling interests)