b'The Section 8 order took steps to implement SectionSixth Circuit Finds the Severability of the 8 of the TRACED Act by (1) codifying in its rules allGovernment-Debt Exemption of the TCPAexisting exemptions for calls to wireless numbers, (2)Applies Retroactivelyamending previously-codified exemptions for callsIn September, the U.S. Court of Appeals for the Sixth made to residential telephone lines to satisfy theCircuit issued a decision in Lindenbaum v. Realgy, LLC, requirements of Section 8, and (3) adding new opt- No. 20-4252, that reversed a district court opinion out requirements for non-exempted calls. The FCCfinding the TCPA unconstitutional from 2015 to 2020. advised that callers who wish to place more artificialThe Sixth Circuits decision follows the U.S. Supreme or prerecorded voice message calls than permitted byCourts holding in July 2020 in Barr v. American the Section 8 order obtain prior express consent fromAssociation of Political Consultants, Inc., No. 19-0631, the called party to receive additional calls. Alternatively,about which Goodwin reported in its 2020 Review. callers may forgo prerecorded messages and placeIn Barr, the Supreme Court held that Congresss 2015 additional calls (including to obtain consent) with aaddition of a government-debt exemption to the TCPAs live agent. In that regard, the FCCs order reflects aprohibition on robocalls to cell phones and landlines preference for live calls over prerecorded ones, findingcreated impermissible content discrimination, but that artificial and prerecorded voice calls are often athat the exemption could be severed from the TCPA. greater invasion of privacy than live calls because theIn Lindenbaum, the private debt-collector defendant call recipient cannot interact with the caller. argued that the severance of the government debt-The Call Blocking Order expanded upon the TRACEDexemption applied only prospectively, and thus Act by: (1) requiring all voice service providers to takegovernment debt collectors acting from 2015 to 2020 affirmative steps to stop illegal traffic on their networkswould have a due process defense to liability because and assist the commission and law enforcementthey did not have fair notice of the unlawfulness of their in tracking down callers that make such calls; (2)conduct, resulting in content discrimination for private-expanding the FCCs existing call blocking safe harbordebt collectors. The Sixth Circuit found that the Supreme based on reasonable analytics to cover network-basedCourt in Barr had automatically displace[d] the blocking under certain circumstances; (3) adoptinggovernment-debt collector exemption and held that the rulings to provide greater transparency and ensure thatseverability of that exemption applies retroactively. The callers and consumers can better identify blocked callsSixth Circuit further held that applying the severability and ensure those that are wanted are un-blocked; andretroactively does not violate the First Amendment (4) broadening the FCCs point-of-contact requirementbecause whether a debt collector had fair notice to cover caller ID authentication concerns under sectionthat it faced punishment for making robocalls turns on 4(c)(1)(C) of the TRACED Act. whether it reasonably believed that the statute expressly permitted its conduct.26'