April 2020

Faegre Drinker Represents Energy Industry in Supreme Court Appeal Challenging TCPA’s Constitutionality

On April 1, 2020, a team of Faegre Drinker litigators comprised of partners Michael Daly, Marsha Indych and Mark Taticchi, and associates Renée Dudek and Deanna Hayes, filed an amicus brief on behalf of the Retail Energy Supply Association (RESA) in an important appeal pending before the U.S. Supreme Court.

The case concerns the constitutionality of Section 227(b)(1)(A)(iii) of the Telephone Consumer Protection Act (TCPA), which generally prohibits the use of automated telephone equipment without prior express consent. See Barr v. Am. Ass’n of Political Consultants, Inc., No. 19-0631 (U.S.). The appeal arises from the U.S. Court of Appeals for the Fourth Circuit’s decision that one of the many statutory and regulatory exceptions from that prohibition — specifically, an exception for calls that try to collect debts that are owed to or guaranteed by the federal government — is a content-based regulation of speech that fails strict scrutiny because it is not narrowly tailored to further a compelling government interest.

RESA’s amicus brief argued that Section 227(b)(1)(A)(iii) is not only riddled with but also reliant on many other content-based exceptions, and therefore the right remedy in this case is not to sever the debt-collection exception as the Fourth Circuit did, but to strike all of Section 227(b)(1)(A)(iii). As it explained, “the text, structure, and history of the TCPA all show that the automated-calling restrictions would not exist without their content-based exceptions, including, but not limited to, the government-debt exception.” It continued, “Because Section 227(b)(1)(A)(iii)’s automated-calling restriction is inextricably bound up with its government-debt exception and other content-based exceptions that have been bored into the statute over the past 30 years, the one cannot be severed from the other. It follows that all of Section 227(b)(1)(A)(iii) is unconstitutional and void.”

Faegre Drinker was proud to partner with RESA, which represents a broad and diverse group of retail energy suppliers and is dedicated to promoting vibrant and sustainable competitive retail energy markets for residential, commercial and industrial consumers. As RESA’s brief observed, the energy sector is one of many that have been targeted by a cottage industry of lawyers and professional plaintiffs who use various tactics to manufacture TCPA claims and extract settlements in exchange for abandoning class actions that threaten astronomical aggregate damages. This has not only created an invisible tax that increases the cost of energy and other goods and services, but also caused a substantial chilling effect on important speech.

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