Lindenbaum v. Realgy, LLC, No. 20-4252 (6th Cir. 2021)
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In 1991, Congress prohibited almost all robocalls to cell phones and landlines, 47 U.S.C. 227(b)(1)(B). A 2015 amendment attempted to allow robocalls if they were made “solely to collect a debt owed to or guaranteed by the United States.” The Supreme Court, in AAPC, held the amendment was unconstitutional content discrimination but that the exception was severable from the rest of the restriction, leaving the general prohibition intact. In 2019-2020, Lindenbaum received two robocalls from Realgy advertising its electricity services. She sued, alleging violations of the robocall restriction. After the Supreme Court decided AAPC, the district court dismissed the case for lack of subject matter jurisdiction reasoning that severability is a remedy that operates only prospectively, so the robocall restriction was unconstitutional and therefore “void” for the period the exception was on the books. Because it was “void,” the district court believed, it could not provide a basis for federal-question jurisdiction.
The Sixth Circuit reversed. Because severance is not a remedy, it would have to be a legislative act in order to operate prospectively only. The Court recognized only that the Constitution had “automatically displace[d]” the government-debt-collector exception from the start, then interpreted what the statute has always meant in its absence.
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