Skip to main content

The Possibility of TCPA Being Invalidated Is No Reason for Complacency

A woman with a headset telephone raises her right palm and holds a sign with a red X in her left hand

Mon, 06/29/2020 - 15:55

The entire telemarketing industry is awaiting the Supreme Court’s decision in AAPC v. Barr, the case that very may well invalidate the Telephone Consumer Protection Act (TCPA) in its entirety. However, the possibility that the main federal enforcement mechanism for regulating telemarketing may soon disappear is no reason for marketers to become lax in their compliance efforts. While the TCPA is the centerpiece of telemarketing regulatory enforcement, it is far from the only means by which the industry is regulated.

Even without the TCPA, telemarketers would still be required to register for the federal Do Not Call (DNC) List. The DNC list is policed by the Federal Trade Commission (FTC) under the auspices of the Telemarketing Sales Rule (TSR). The TSR derives its authorization from the Telemarketing and Consumer Fraud and Abuse Prevention Act and would still be in effect even without the TCPA.

Similarly, the numerous state-level DNC lists and telemarketing regulations would still exist in the absence of the TCPA. The government’s regulatory apparatus for telemarketing may be built around the TCPA but it would still exist in some form even without that statute. Indeed, it is possible and perhaps even likely that these other laws would take on greater importance and be the focus of increased regulatory efforts in the event that SCOTUS vacates the TCPA. While the TCPA would not be the means by which violations are enforced, it will still be illegal to make pre-recorded calls without proper consent.

Even without their main tool for lawsuits, litigators will still find ways to pursue telemarketers who are not careful about their policies and procedures. For example, the aforementioned Telemarketing and Consumer Fraud and Abuse Prevention Act gives individuals the right to bring lawsuits at the federal level if certain conditions are met. Just as government officials will be more likely to utilize other telemarketing regulations in the absence of the TCPA, litigators will find other ways to file suit.

Of course, it also remains possible that the Supreme Court does not invalidate the TCPA. During oral arguments, multiple justices went out of their way to praise the law. And the general tenor of expert analysis of oral arguments was that the ultimate decision could go a number of different ways. Additionally, Congress seems to view the TCPA favorably, having passed the TRACED Act last year by overwhelming margins. It is a near certainty that, if the TCPA is rendered invalid by the Court, a replacement law will be passed within a matter of months.

One notable phenomenon in recent TCPA litigation is the fact that numerous courts have refused to stay pending TCPA litigation in anticipation of SCOTUS’s ruling in AAPC v. Barr. One court even invoked the government-backed debt exemption at the center of AAPC v. Barr in a decision that was rendered after oral arguments in the SCOTUS case. This is strong evidence that the potential end of the TCPA will not eliminate the general regulatory ecosystem for telemarketing. Regardless of what happens in the wake of SCOTUS’s decision, callers need to remain diligent.