May 07, 2020

National Journal Turns to Mark Taticchi for Insight into High Court's Review of the TCPA

On May 6, the U.S. Supreme Court heard oral arguments in a case challenging the constitutionality of the Telephone Consumer Protection Act (TCPA), Barr v. American Association of Political Consultants Inc. In the article “Supreme Court Weighs Jettisoning ‘Bedrock’ Anti-Robocall Law,” the National Journal spoke with Litigation partner Mark D. Taticchi for insight into the case.

The publication reports that while justices may refrain from tossing the entire TCPA, it’s possible they will seek to sever a 2015 provision exempting federal debt collectors from the restriction against autodialing cellphones without consent. Were that to occur, additional agency exemptions to the autodialing ban could also run afoul of federal courts in the future.

Taticchi told the National Journal that, “the chief [justice] tends to steer narrowly when he can, but this is a hard one to do that with.”

Taticchi, who helped draft an amicus brief in support of the political consultants challenging the law, said that “maybe you do what the chief does sometimes and say, ‘Look, today we’re going to cut narrowly and just deal with this, but Congress had better fix this. Because if not, we’re coming for you.’”

He added that the Federal Communications Commission has since issued several other exemptions to the autodialing ban, including for health care information, financial information, and delivery confirmations. If the Supreme Court finds the exemption on federal debt collectors is an unacceptable content-based violation of free speech, Taticchi argued, why wouldn’t these other exceptions trigger the same concerns?

“The fundamental view the Court would have to take to invalidate the whole ban is that this broader ban on autodialed calls just can’t stand without content-based exceptions,” said Taticchi. “The necessity of content-based exceptions is sort of baked into the expectations of Congress when it passed the law, and it’s too dependent on the existence of content-based exceptions to blunt some of the more draconian aspects of this law, and so without those Congress would not have passed the statute.”

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