PITTSBURGH – A Pittsburgh attorney says that a recent decision in a Louisiana federal court has resurrected the potential for defendants facing litigation under the Telephone Consumer Protection Act to claim that the law is unconstitutional in its entirety.
It has been an impactful year for TCPA cases on the federal level.
The U.S. Supreme Court reached a decision in Barr v. American Association of Political Consultants on July 6, in which the Court chose to sever a narrow 2015 amendment regarding the collection of government debts, on the grounds that it was an unconstitutional restriction on speech that violated the First Amendment.
Some legal observers were disappointed by the ruling, feeling instead that the TCPA should have been declared unconstitutional in its entirety.
They now have renewed standing to present such an argument.
The U.S. District Court for the Eastern District of Louisiana handed down a ruling on Sept. 28 in Creasy v. Charter Communications, Inc., that returns the constitutionality of the TCPA as a whole to the forefront.
Though confirming that Barr is binding authority, the Creasy court examined the question of how to handle TCPA claims which accrued during the period from the 2015 adoption of the constitutionally-defective amendment until July 6 of this year, when the U.S. Supreme Court issued Barr and severed that amendment.
The Creasy court decided that during the time period when the amendment was considered valid from 2015 until this past July, the TCPA was constitutionally-defective in its entirety. The court held that it had no subject matter jurisdiction to enforce an unconstitutional and thus invalid law, with respect to any claims brought between the adoption of the 2015 amendment and July 6, 2020.
The court further dismissed all such claims and stayed the narrow TCPA claim which remained, pending a forthcoming announcement of the U.S. Supreme Court’s decision in Facebook, Inc. v. Duguid – where the court will decide whether the definition of an “automatic telephone dialing system” under the TCPA should be interpreted expansively (as plaintiffs prefer) or more narrowly (as defendants contend).
Kevin P. Allen, an attorney with the Pittsburgh office of Eckert Seamans, said that the decision in Creasy could offer strong constitutional and jurisdictional defenses for parties faced with TCPA litigation.
“The impact of [Creasy] could be that it highlights an argument that appeared to perhaps fall by the wayside with the U.S. Supreme Court’s decision in July, in Barr v. American Association of Political Consultants. In the Barr case, the Supreme Court had held that the TCPA had a provision that was unconstitutional,” Allen said.
“The argument in Barr that TCPA defendants had made, was that not only was that provision unconstitutional, but the presence of that discrete provision rendered the whole statute unconstitutional. The Supreme Court held that the discrete provision was unconstitutional, but had refused to hold the entire statute unconstitutional.”
Allen explained that while the Barr decision had “scuttled hopes” of TCPA defendants hoping to have the entire law nullified, the Creasy decision revived those hopes in labeling the TCPA wholly unconstitutional during the period in which the offending amendment was on the books.
“The Creasy decision creates a decent argument for TCPA defendants in Pennsylvania and elsewhere, that the TCPA as a whole was unconstitutional from 2015 until July 6, 2020, when the Supreme Court severed the offending provision,” Allen said.
“If a TCPA defendant placed a call that was allegedly in violation of the TCPA and that call was placed on July 1, 2020 or July 1, 2019, etc., there is an argument following the Creasy logic and holding that the TCPA as a whole was unconstitutional at the time of that alleged call. And so, it can’t be enforced against a TCPA defendant.”
Allen confirmed the import of Creasy would potentially make it a game-changer statewide.
“If federal district courts here, like the [Louisiana] federal district court in Creasy, adopt that argument, frankly, the TCPA is a void law. Any unconstitutional law, by definition, is no law at all. It’s a void law. Obviously, a TCPA plaintiff can’t enforce a void statute against a defendant,” Allen said.
“If a call happened in 2016, 2017, 2018, 2019 or 2020 before July 6 of this year, under Creasy, there would be no TCPA to enforce. The federal courts would have no ability to enforce it and thus, no liability could be imposed on TCPA defendants under Creasy’s logic.”
Allen added since the Creasy court said it had no jurisdiction to consider the claims related to TCPA calls during the time the now-stricken amendment was in place, such thinking could present the argument of a blanket defense for TCPA defendants.
“It’s hard to get more of blanket ruling than that, where the court says, ‘You can’t bring a case, we won’t even hear it, the statute doesn’t exist, it’s unconstitutional for that time frame,” Allen said.
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com