As we reported yesterday, the Supreme Court has accepted cert. on a petition brought by Facebook to resolve an ongoing circuit split over the proper application of the Telephone Consumer Protection Act’s (TCPA’s) automated telephone dialing system (“ATDS”) definition. This decision comes on the heels of another Supreme Court ruling issued just this Monday in which the high court determined the TCPA is unconstitutional as written, but can be saved by altering First Amendment doctrine and giving the TCPA a haircut.
While the TCPA has certainly been in the Supreme Court’s gaze as of late, that is not particularly surprising. The TCPA is the single broadest restriction on constitutionally-protected speech in our nation’s history and also produces piles of the most complex (and expensive) class action litigation out there. Indeed, it is not uncommon for Defendants caught in the grips of a TCPA class action to face billions or even tens of billions in potential exposure based upon the statute’s immense statutory damages. And since no one really knows what technology the TCPA applies to–more on that below– the statute raises a host of constitutional issues–from First Amendment implications, void for vagueness problems, excessive fine issues and due process concerns.
Indeed, the TCPA is an absolute junker of a statute from a Constitutional perspective, and it is requiring much upkeep by the Supreme Court to keep running. While SCOTUS dodged precedent to keep the statute on the books this time, the next go round the TCPA might not be so lucky–eventually the Supreme Court is going to get tired of wasting its time on a statute that doesn’t even work the way it is supposed to. To read more, click here.