In light of recent challenges to the Telephone Consumer Protection Act on First Amendment grounds, a recent decision from the Middle District of Florida provides yet another clear example of the TCPA’s content-based discrimination.
The case, Gaza v. Navient Solutions LLC, No. 8:18-cv-1049, concerned calls made to a cell phone to collect a student loan debt. The plaintiff, Jason Gaza, had taken out two federal student loans which were serviced by defendant, Navient Solutions LLC. Although the promissory note explicitly allowed for debt collection calls to his cell phone, Gaza had sent a written revocation of consent. After Navient continued to call his cell phone to collect the debt, Gaza filed suit.
Navient moved for summary judgment, arguing that the calls were exempt from the TCPA because they were made to collect on a loan owed to the United States Government – in this case, the Department of Education. The Court agreed, citing the plain statutory language of the TCPA which prohibits calls using “any automatic telephone dialing system or an artificial or prerecorded voice . . . [to a cell phone] . . . unless such call is made solely to collect a debt owed to or guaranteed by the United States.” See 47 U.S.C. § 227(b)(1)(A)(iii).
The decision highlights the treatment of the TCPA as a content-based statute as opposed to a relationship-based one. Indeed, at its inception, the TCPA was designed to discourage contact with consumers by telemarketers and other spammers. However, regulatory interpretation and enforcement has shifted from shielding consumers from unwanted telemarketing calls towards treating the TCPA as a prohibition on content (i.e., debt collection for which consent has not been given) regardless of the pre-existing relationship between consumer and creditor, creating convenient statutory carve-outs for debt collection done on behalf of the United States Government (added in 2015 to alleviate the burden the TCPA places on debt collectors). This content-based approach – the government-backed exemption specifically – is being challenged on First Amendment grounds, with the Ninth Circuit recently hearing oral arguments on the issue in Gallion v. Charter Communications.
Time will tell if companies seeking to collect debts from their customers find the same relief the U.S. Government provided itself with the government-backed exemption. In the meantime, follow our blog as Troutman Sanders will continue to monitor and provide updates on developments under the TCPA and other financial services matters.