The Telephone Consumer Protection Act discriminates between types of calls based on content: persons calling to seek collection of federal debts get an exemption from TCPA requirements, while other types of calls do not. Federal courts have split over whether this discrimination is constitutional, setting up in the long term a possible Supreme Court showdown. In the meantime, federal courts continue to split on the issue. 

On September 5, a judge within the District of Delaware joined the debate by granting in part and denying in part a defendant’s motion for summary judgment, finding that the content-specific exemptions in the TCPA permitted calls to the plaintiff dating back to 2015. In doing so, the District Court split from the Fourth and Ninth circuits, which have struck down the exemptions as an unconstitutional content-based exemption. 

The plaintiff, Ricky Franklin, brought claims against student loan servicer Navient, Inc. and Student Assistance Corporation, asserting violations of the TCPA and the Fair Debt Collection Practices Act (“FDCPA”). Franklin obtained a student loan in 2004, which is guaranteed against default by the United States Department of Education. Navient and its affiliate, Student Assistance Corporation, service the loan. According to Franklin, Navient called him on his cellular telephone without his consent a number of times between January and March of 2015 and again between January and March of 2017. For its part, Navient contended that calls made to Franklin after 2015 did not violate the TCPA, which was modified in late 2015 to exempt from the statute calls made “solely to collect a debt owed to or guaranteed by the United States.” 

The District Court agreed with Navient, finding that “[t]he plain language of the TCPA is unambiguous: calls made solely to collect U.S.-guaranteed debts are exempt from TCPA coverage.” As the debts were guaranteed by the United States, the District Court awarded summary judgment to Navient on all calls made to him after the amendment of the statute. 

This analysis is directly contradictory to decisions from both the Fourth and Ninth circuits. As we reported here, the Fourth Circuit struck down the exemption as impermissibly content-based and contravening the Free Speech Clause of the United States Constitution. The Fourth Circuit found that “the relationship between the federal government and the debtor is only relevant to the subject matter of the call. In other words, the debt collection exemption applies to a phone call made to the debtor because the call is about the debt, not because of any relationship between the federal government and the debtor.” The Ninth Circuit followed suit in June of this year in the Duguid v. Facebook, Inc. case, finding that the exemption did not pass strict scrutiny review. As we covered here, the Ninth Circuit unanimously rejected Facebook’s petition for rehearing. 

With the Ninth Circuit’s denial, the stage may be set for the U.S. Supreme Court to weigh in on the matter. The appeal may implicate a potential invalidation of all claims brought under § 227(b)(1)(A)(iii) of the TCPA.   

Troutman Sanders will continue to monitor legal developments in this area.