Congress Amends TCPA to Include Exemption for Certain Debt Collection Calls

It is now easier for debt collectors to contact individuals if they have government-backed mortgages, student loans, VA loans, farm loans, or even back taxes.  As part of the Bipartisan Budget Act of 2015 passed on November 2, 2015, Congress created an exemption to the Telephone Consumer Protection Act (“TCPA”) restrictions and now permits prerecorded and automatic telephone dialing system (“ATDS”) calls to cell phones without any consent if the calls are made solely to collect a debt owed to or guaranteed by the United States.  Those same prerecorded debt collection calls are also permitted to residential lines without consent.  The Federal Communications Commission (“FCC”) will publish regulations implementing this change within nine months.

This is one of many recent exemptions to the TCPA’s ban on certain calls to cell phones.  On July 10, 2015, the FCC exempted from the TCPA restrictions on prerecorded or ATDS calls to cell phones or prerecorded calls to residential lines, calls from banks and financial institutions to notify customers of potential fraudulent transactions, data breaches, and time-sensitive money transfers.  In the same ruling, the FCC exempted prerecorded and ATDS calls to cell phones from the prior express consent requirement if the calls are made for an urgent healthcare treatment purpose under the Health Insurance Portability and Accountability Act (“HIPAA”).

Other recent exemptions from the TCPA restrictions include notifications of package arrivals from delivery companies, non-telemarketing calls or texts that rely on consent provided by an intermediary, and calls made to a wireless customer by his own wireless carrier as long as the customer is not charged for the call.  

With these exemptions, however, Congress may be violating the First Amendment by favoring certain types of speech or speakers, i.e. "content-based" exemptions, instead of generally applying the statute (like a ban on loud noise at night). For example, the fully-protected, noncommercial speech of political organizations is restricted by the TCPA's express consent provision, but these exemptions permit calls for purely commercial speech. By favoring commercial speech over noncommercial speech, the TCPA's express consent provision may violate the constitutional rights of political organizations.