Am. Ass'n of Political Consultants, Inc. v. Fed. Commc'ns Comm'n

923 F.3d 159
Court of Appeals for the Fourth Circuit·Decided April 24, 2019·No. No. 18-1588·Published·Cited by 44 cases

Opinion

KING, Circuit Judge:

*161The American Association of Political Consultants, Inc. and three other plaintiffs (hereinafter the "Plaintiffs") appeal from a summary judgment award made by the district court to the defendants, the Federal Communications Commission (the "FCC") and the Attorney General (collectively the "Government"). See Am. Ass'n of Political Consultants v. Sessions , 323 F.Supp.3d 737 (E.D.N.C. 2018) (the "Opinion").1 The Plaintiffs initiated this litigation in May 2016 in the Eastern District of North Carolina, alleging that part of the Telephone Consumer Protection Act of 1991 (the "TCPA") contravenes the Free Speech Clause of the First Amendment. As pertinent here, the TCPA prohibits calls to cell phones by use of an automated dialing system or an artificial or prerecorded voice, subject to three statutory exemptions (the "automated call ban"). The Plaintiffs allege that one of the statutory exemptions to the automated call ban - created by a 2015 TCPA amendment - is facially unconstitutional under the Free Speech Clause. That exemption authorizes automated calls that relate to the collection of debts owed to or guaranteed by the federal government (the "debt-collection exemption").2 According to the Plaintiffs, the free speech infirmity of the debt-collection exemption is not severable from the automated call ban and renders the entire ban unconstitutional.

In awarding summary judgment to the Government in March 2018, the Opinion rejected the free speech challenge interposed by the Plaintiffs. The district court applied strict scrutiny review to the debt-collection exemption and ruled that it does not violate the Free Speech Clause. As explained below, we agree that strict scrutiny review applies in this case but conclude that the debt-collection exemption does not satisfy such a review. As a result, we agree with the Plaintiffs that the debt-collection exemption contravenes the Free Speech Clause. In agreement with the Government, however, we are satisfied to sever the flawed exemption from the automated call ban. We therefore vacate the judgment and remand.

I.

A.

Enacted in 1991, the TCPA was a response by Congress to the reactions of American consumers over intrusive and unwanted phone calls. As a result of congressional *162concern with automated phone calls, the automated call ban prohibits phone calls to cell phones that use "any automatic telephone dialing system or an artificial or prerecorded voice." See 47 U.S.C. § 227(b)(1)(A).3 The automated call ban does not, however, reach and prohibit all calls made with those technologies. For example, the TCPA authorizes automated phone calls to cell phones if they satisfy one of the statutory exemptions specified in the automated call ban. When it was enacted in 1991, the TCPA created two statutory exemptions to the ban, both of which are yet in effect. Under the first exemption, if an automated call to a cell phone is initiated "for emergency purposes," it does not contravene the automated call ban (the "emergency exemption"). See id. Pursuant to the second statutory exemption, an automated call made to a cell phone with "the prior express consent of the called party" likewise does not violate the ban (the "consent exemption"). See id.

For more than twenty years, the emergency and consent exemptions were the only statutory exemptions to the automated call ban. In 2015, however, Congress enacted the third statutory exemption - the debt-collection exemption - and therein excepted from the ban all calls to cell phones "made solely to collect a debt owed to or guaranteed by the United States." See Bipartisan Budget Act of 2015, Pub. L. No. 114-74, § 301(a), 129 Stat. 584, 588 (2015) (amending 47 U.S.C. § 227(b)(1)(A)(iii) ).4 In addition to the statutory exemptions, automated calls made by the federal government itself are not barred by the automated call ban. See Campbell-Ewald Co. v. Gomez , --- U.S. ----, 136 S.Ct. 663, 672, 193 L.Ed.2d 571 (2016) ("The United States and its agencies, it is undisputed, are not subject to the TCPA's prohibitions."). With the foregoing statutory framework in mind, we turn to the proceedings in the district court.

B.

In May 2016, the Plaintiffs filed this lawsuit in the Eastern District of North Carolina, alleging, inter alia, that the debt-collection exemption to the automated call ban contravenes their free speech rights because it is a content-based restriction on speech that fails to satisfy strict scrutiny review. According to the complaint, the debt-collection exemption creates a regime that permits - and thereby unconstitutionally favors - a select group of otherwise prohibited automated calls to cell phones. The complaint also alleges that *163whether an automated phone call satisfies the debt-collection exemption, and thus escapes the prohibitions of the automated call ban, depends on the call's content. The Plaintiffs therefore allege that the debt-collection exemption to the ban contravenes the Free Speech Clause.

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Am. Ass'n of Political Consultants, Inc. v. Fed. Commc'ns Comm'n, 923 F.3d 159 (4th Cir. 2019).

923 F.3d 159 (Am. Ass'n of Political Consultants, Inc. v. Fed. Commc'ns Comm'n) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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