June 18, 2019

Court: TCPA exception violates First Amendment

Phone The Ninth Circuit Court of Appeals ruled last week that the Telephone Consumer Protection Act's (TCPA) government-backed debt collection exception violates the First Amendment. Under the exception, calls intended to collect a debt owed to or guaranteed by the U.S. are exempt from the TCPA. This comes after the Fourth Circuit issued the same ruling in a different case earlier this year.

The court did not rule the entire statute unconstitutional, but found that the debt collection provision could be reviewed separately. NAFCU has repeatedly asked for clarity from the Federal Communications Commission (FCC) on TCPA exemptions, and it remains unclear whether the government-backed debt exemption includes Fannie Mae and Freddie Mac loans.

Earlier this year, the Supreme Court was asked to review a decision from  the Ninth Circuit, which expanded the definition of an autodialer. However, the parties reached a settlement and withdrew the request.

This ruling marks the second Circuit court to rule that the exception violates the First Amendment, a similar ruling was made by the United States Court of Appeals for the Fourth Circuit in April.

NAFCU has actively worked with the FCC on efforts to modernize the TCPA for more than three years. The association previously shared its concerns related to the definition of an autodialer and the need for clarity under the TCPA to ensure credit unions can contact their members without fear of breaking the law.

Last week, NAFCU Vice President of Legislative Affairs Brad Thaler flagged a number of TCPA issues that the association is engaged on – including support for a broader definition of "autodialer" and efforts to combat illegal robocalls – ahead of the Senate Commerce Committee's oversight hearing of the FCC.

In addition to its work with the FCC and Congress, the association has met with the CFPB and Treasury Department to discuss TCPA reforms and how credit unions could be impacted.