The Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. §227, prohibits certain calls made using automated dialing systems, commonly called “robocalls.” In December, 2015, Musick, Peeler & Garrett’s Business Litigation Notes reported on an amendment included in the 2015 Federal Budget Act that exempted from the TCPA calls made in connection with “collection of a debt owed to or guaranteed by the United States.” (New TCPA Amendments Exempt Collection Of Federal Debts).
The amendment itself did not specify whether it would apply retroactively and thereby potentially lead to dismissal of lawsuits that were filed before the amendment was effective. On March 31, 2016, the United States District Court for the Northern District of California ruled that the amendment does apply retroactively, and dismissed a lawsuit that had been filed in 2014 (Silver v. Pennsylvania Higher Education Assistance Agency, USDC N.D. Cal. 14-cv-00652 PJH).
In the Silver case, the defendant was a federal student loan servicer being sued in a class action based on alleged automated collection calls. The servicer asked the court to dismiss the case on several grounds including: (1) the TCPA amendment barred the case; (2) plaintiff had consented to the phone calls at issue; and (3) the calls were not placed using an automated telephone dialing system as defined in the TCPA. The court found that it did not need to address the second or third ground because the first ground – retroactivity of the TCPA amendment –disposed of the case.
The court looked to previous Supreme Court precedent on the issue of retroactive application of congressional amendments, specifically the 1994 case of Landgraf v. USI Film Products. The court found that retroactive applicability of the amendment would not impair plaintiff’s rights, and that “the amendment actually decreases liability for past conduct.” The Silver court also found support in the 2002 decision of the Ninth Circuit in Southwest Center for Biological Diversity v. USDA, a case under the Freedom of Information Act.
Although district court opinions like Silver do not carry the same precedential value as appellate opinions from the Circuit Courts of Appeals or United States Supreme Court, this opinion could carry great weight, since it is, to our knowledge, the only case in the country that has yet weighed in on the retroactivity of the recent TCPA amendment. Accordingly, the opinion may lead to dismissals of other TCPA cases brought against lenders and servicers of federally-backed loans, even if those cases were filed before the amendment’s effective date. At least unless Congress (which is currently considering further legislation on the subject of TCPA applicability) amends the statute again.
Donald E. Bradley is a partner in Musick, Peeler & Garrett’s Orange County, California, office, and is the Chair of the firm’s Business Litigation Practice Group. He specializes in consumer credit and privacy issues, including individual and class action defense under the TCPA, Fair Credit Reporting Act, Fair Debt Collection Practices Act, and numerous other federal and state consumer protection statutes. His full bio and contact information can be found at http://musickpeeler.com/professional/Donald_Bradley.