2021 marked another year of important developments in the TCPA landscape as lower courts issued conflicting interpretations of SCOTUS’s ruling Barr v. AAPC and began to apply the definition of “autodialer” that SCOTUS articulated in Facebook, Inc. v. Duguid. Although defendants swung for the fences in an attempt to argue that AAPC rendered the entirety of the TCPA unenforceable for a five year period and had some initial success, the tide seems to be turning. Similarly, although Duguid provided a narrow definition of an “autodialer”, factual disputes about what satisfies that new definition may still need to be resolved on summary judgment.
The Dust Has Not Settled on Whether Defendants Can Be Held Liable for Robocalls Made Between 2015 and July 2020 Following SCOTUS’s Landmark Decision in AAPC.
In the wake of the Supreme Court’s decision in Barr v. American Association of Political Consultants, Inc. (“AAPC”), 140 S. Ct. 2335 (2020), lower courts have continued to grapple with the question of whether plaintiffs can assert Telephone Consumer Protection Act (TCPA) claims for conduct occurring between 2015 and July 2020—the time period between when the government-backed debt exception amendment to the TCPA was passed and the date that the Supreme Court declared it unconstitutional. A split among district courts quickly emerged. One line of cases followed an early Eastern District of Louisiana decision, Creasy v. Charter Communications, Inc., in holding that there could be no liability imposed for calls occurring during the contested five-year time period. But the majority of district courts declined to adopt Creasy’s reasoning, instead finding that AAPC did not negate the liability of parties that made robocalls during that time period.
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