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Law360 Publishes Article by Scott Shaffer on Recent TCPA Rulings that Benefit Companies Facing Robocall Claims

October 22, 2020

Law360 has published an article authored by advertising partner Scott Shaffer entitled “Charter TCPA Ruling May Benefit Cos. Facing Robocall Claims.” In the article, Mr. Shaffer analyzes a recent ruling, Creasy v. Charter Communications Inc., which held that a significant portion of the Telephone Consumer Protection Act (TCPA) is unenforceable for violations occurring between November 2015 and July 6, 2020. The ruling will potentially benefit businesses facing TCPA robocall claims made during that time period. Shaffer advises, “any company facing such a claim should strongly consider challenging the court's jurisdiction to enforce the anti-robocall portion of the TCPA as soon as possible.” The basis of the ruling comes from what was known as the government debt exception, which allowed unsolicited robocalls to be made only for one purpose, to collect a debt owed to or guaranteed by the United States. But in July 2020, the US Supreme Court held, in a case named Barr v. American Association of Political Consultants Inc., that government debt exception violated the First Amendment because it favored one form of speech over another. Going forward, the Supreme Court ruled that no robocalls or automated text messages are allowed without prior express consent, but left other courts to decide what to do about violations that occurred during the time that the now unconstitutional statute was in effect. In the Creasy ruling, attorneys for Charter Communications argued that districts court now lack jurisdiction to enforce the unconstitutional version of the TCPA. Agreeing with Charter Communications, the district court dismissed 129 of the 130 robocalls at issue (the 130th call being made after the Supreme Court’s decision). The question remains whether other courts around the country will follow the Creasy ruling for TCPA claims arising between November 2015 and July 2020. Shaffer believes there is a strong likelihood other courts will agree that they can no longer enforce the robocall ban since it is now considered unconstitutional in its prior form. Shaffer explains, “if your business is facing a TCPA claim for the period from November 2015 through July 2020, the Creasy ruling presents the possibility for a get-out-of-jail-free card, even in cases where the robocalls were clearly illegal.”

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