b'Telephone Consumer Protection ActThroughout 2020, Goodwin has continued tohas since been bolstered by similar decisions from the actively monitor and analyze litigation and regulatorySecond and Sixth Circuits. Support has grown for a more developments affected by the TCPA. Of note this yearlimited construction of the TCPA, however, widening were several decisions from the circuit courts thatthe circuit split on the question. The issue is set to be impacted the potential for liability under the statute.resolved in 2021, as the Duguid decision was certified The U.S. Supreme Court also agreed to review thefor review before the U.S. Supreme Court in July 2020. proper interpretation of an important element of a TCPAFacebook,Inc. v. Duguid, No. 19-0511. As reported by cellphone provision claim, which will resolve the circuitGoodwin, the Court heard arguments on December split that continued to deepen in 2020. 2020, and a decision is expected in the first half of 2021.Key Trends 2020 HighlightsTCPA litigation has remained a favorite vehicle for suitSupreme Court Rules on Constitutionality of Debt among the plaintiffs bar, with the number of TCPACollection Exemptioncomplaints filed in 2020 increasing by about 6% overIn July, the Supreme Court decided that an exemption those filed in 2019.11 Consistent with the increasedto the TCPA that allows for automated calls (those litigation, the FCC has continued its trend of enhancingplaced with an ATDS or prerecorded or artificial voice consumer protection against unlawful robocalls. In Maymessage) to be made to collect federally backed debts 2020, the FCC issued an Order amending Sectionviolates the First Amendment because the exemption 1.80 of its TCPA rules (47 C.F.R.1.80), expanding itsis a content-based restriction on speech that cannot ability to enforce TCPA violations through elimination ofsatisfy strict constitutional scrutiny. Barr v. American the TCPAs initial warning requirement prior to issuingAssociation of Political Consultants, Inc, No. 19-0631. penalties, extending the statute of limitations period,The Barr decision arose out of an appeal from the and increasing the maximum fine for violations.Fourth Circuit, in a case where the defendant argued Additionally, as predicted in Goodwins 2019 Review,that the unconstitutionality of the debt collection thedefinition of what constitutes an ATDS under theexemption renders the entirety of the restrictions TCPA remained a hotly contested issue among theon automated calls unconstitutional. As reported in courts in 2020. Following the landmark TCPA ruling byGoodwins 2019 Review, a similar challenge to the the D.C. Circuit in ACA International v. FCC, No. 15-1211, inexemption provision was also made in the Ninth Circuit 2018in which the court found that the FCCs definitionin 2019. Ultimately, however, the Supreme Court in Barr of an ATDS was overly broad, but stopped short oftook the middle ground, concluding that the appropriate actually defining ATDSseveral circuit courts weighedremedy was to sever the constitutionally deficient in on the issue of the definition of the ATDS. The Ninthprovision from the statute, and allow the remainder of Circuits 2019 decision in Duguid v. Facebook, Inc., No.the statute to stand.17-15320, set the stage for a circuit split when it held thatIn September, in the wake of the Supreme Courts a device that sent text messages to cellphones was andecision in Barr, the Eastern District of Louisiana held ATDS because it stored numbers to be automaticallythat the TCPA provision banning automated callsto dialed. That decision, which contrasted with the Thirdwhich the debt-collection exemption was appended in Circuits ruling in Dominguezv. Yahoo, Inc., No. 17-1243,November 2015was unconstitutional in its entirety 1 This data is as of September 2020, per WebRecon.24'