SCOTUS Will Review Constitutionality of TCPA’s Government Debt Exception

The United States Supreme Court just granted a petition for a writ of certiorari in William P. Barr et al. v. American Association of Political Consultants, Inc. et al., No. 19-631, to review the Fourth Circuit’s decision striking down 47 U.S.C. 227(b)(1)(A)(iii) as unconstitutional. (Hold my breath for a second…)

First, some background for this case. Petitioners here, are William P. Barr, Attorney General of the United States (“Attorney General”) and the Federal Communications Commission (“FCC”). Respondents are an association of political consultants and various political organizations. In 2016, respondents sued Attorney General and the FCC in the Eastern District of North Carolina, alleging that “the government-debt exception to the automated0call restriction effects an impermissible form of content-based discrimination, in violation of the Free Speech Clause of the First Amendment.” (See Petition at p. 4.) The district court granted summary judgment in favor of the government and rejected respondents’ claim that the TCPA violates the First Amendment. However, upon appeal by respondents, the Fourth Circuit vacated the lower court’s judgment. The court concluded that “the government-debt exception renders that automated-call restriction ‘fatally underinclusive’ ‘by authorizing many of the intrusive calls that the automated call ban was enacted to prohibit,’ and by ‘imped[ing] the privacy interests of the automated call ban.’” The court of appeals therefore held that the TCPA provision “fails strict scrutiny review” and “violates the Free Speech Clause.” The court of appeals further denied rehearing en banc. (See Petition at pp. 5 and 6.)

Petitioners filed their Petition on November 14, 2019 and presented the Supreme Court with the following question:

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