In Silver v. Pennsylvania Higher Education Assistance Agency, 2016 WL 1258629, at *2-4 (N.D.Cal., 2016), Judge Hamilton granted summary judgment to the PHEAA in a TCPA claim on the grounds that the the amendments to the TCPA exempting them apply retroactively.
Defendant argues that there is no dispute that the loans at issue in this case were federally funded student loans, and thus, the only issue is whether the TCPA amendment can be applied retroactively to bar plaintiff’s current action.. . . While defendant argues that Congress was silent on the amended statute’s retroactivity, plaintiff argues that the statute “requires the [FCC] to issue regulations to implement its TCPA changes within nine (9) months of the date of the enactment of the bill,” and because those implementing regulations have not been prescribed, the amendment does not apply. However, plaintiff cites no authority for his argument that a statute has no legal effect until implementing regulations are put in place. The court finds that the relevant TCPA amendment is indeed silent on the issue of retroactivity, and thus, it will move to the second part of the Landgraf test – “whether it would impair rights a party possessed when he acted, increase a party’s liability for past conduct, or impose new duties with respect to transactions already completed.” The court finds that none of these three conditions are met. Specifically, rather than “increas[ing] a party’s liability for past conduct,” the amendment actually decreases liability for past conduct, by creating an exception for telephone calls “made solely to collect a debt owed to or guaranteed by the United States.” Similarly, rather than “impos[ing] new duties with respect to transactions already completed,” the amendment eliminates certain duties with respect to completed transactions. On the issue of whether the amendment “would impair rights a party possessed when he acted,” plaintiff argues that the amendment “substantively impairs plaintiff’s rights since the amendment, once it is implemented by the FCC, will potentially waive future lawsuits against collectors like defendant.” Dkt. 48 at 4-5. However, merely impairing the ability to bring a lawsuit does not provide a sufficient basis, under Landgraf, to bar retroactive application.. . . As in Southwest Center for Biological Diversity, plaintiff in this case claims that his right to success in this suit would be impaired by application of the after-arising statute. But for the reasons expressed by the Ninth Circuit, such an impairment is not sufficient. Accordingly, having failed to meet any of the three conditions identified in Landgraf (i.e., whether it would impair rights a party possessed when he acted, increase a party’s liability for past conduct, or impose new duties with respect to transactions already completed), the court finds that applying the TCPA amendment would not have a “retroactive effect,” as that term was defined by the Landgraf Court. Further, just as the Southwest Center for Biological Diversity court found that “application of the [FOIA] exemption furthers Congress’s intent to protect information regarding threatened or rare resources of the National Parks,” application of the TCPA amendment would further Congress’s intent to allow telephone calls to be placed in the furtherance of collecting debts owed to or guaranteed by the United States. Accordingly, the court finds that the TCPA amendment does indeed exempt the calls allegedly placed by defendant, and as a result, defendant’s motion for summary judgment is GRANTED. Because the retroactivity issue is dispositive, the court need not reach the other two issues raised in defendant’s motion.