Am. Ass'n of Political Consultants v. Sessions

323 F. Supp. 3d 737
CourtDistrict Court, E.D. North Carolina
DecidedMarch 24, 2018
DocketNo. 5:16-CV-252-D
StatusPublished
Cited by4 cases

This text of 323 F. Supp. 3d 737 (Am. Ass'n of Political Consultants v. Sessions) is published on Counsel Stack Legal Research, covering District Court, E.D. North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Am. Ass'n of Political Consultants v. Sessions, 323 F. Supp. 3d 737 (E.D.N.C. 2018).

Opinion

JAMES C. DEVER III, Chief United States District Judge

On May 12, 2016, the American Association of Political Consultants, Inc., the Democratic Party of Oregon, Inc., Public Policy Polling, LLC, the Tea Party Forward PAC, and the Washington State Democratic Central Committee (collectively, "plaintiffs") sued United States Attorney General Loretta Lynch in her official capacity and the Federal Communications Commission ("the FCC") (collectively, "defendants") [D.E. 1].1 On August 5, 2016, plaintiffs amended their complaint [D.E. 18]. Plaintiffs contend that the autodialing ban in 47 U.S.C. § 227(b)(1)(A)(iii) of the Telephone Consumer Protection Act of 1991, as amended ("TCPA") violates the First Amendment. See Am. Compl. [D.E. 18] ¶¶ 2, 36-63. On September 2, 2016, defendants moved to dismiss plaintiffs' amended complaint for lack of subject-matter jurisdiction [D.E. 22] and filed a memorandum in support [D.E. 23]. See Fed. R. Civ. P. 12(b)(1). On March 15, 2017, the court denied defendants' motion to dismiss [D.E. 26].

On May 19, 2017, plaintiffs moved for summary judgment [D.E. 30] and filed a memorandum in support [D.E. 31]. On June 19, 2017, defendants responded in opposition [D.E. 33], cross-moved for summary judgment [D.E. 34], and filed a memorandum in support [D.E. 35]. On July 5, 2017, plaintiffs responded and replied [D.E. 36]. On July 20, 2017, defendants replied [D.E. 39]. As explained below, this court joins the five other United States District Courts that have addressed the issue and holds that 47 U.S.C. § 227(b)(1)(A)(iii) does not violate the First Amendment. See Gallion v. Charter Commc'ns Inc., 287 F.Supp.3d 920, 926-931 (C.D. Cal. 2018) (unpublished), appeal docketed, No. 18-80031 (9th Cir. Mar. 8, 2018);

*740Greenley v. Laborers' Int'l Union of N. Am., 271 F.Supp.3d 1128, 1145-51 (D. Minn. 2017) ; Mejia v. Time Warner Cable Inc., 15-CV-6445 (JPO), 15-CV-6518 (JPO), 2017 WL 3278926, at *12-17 (S.D.N.Y. Aug. 1, 2017) (unpublished); Holt v. Facebook, Inc., 240 F.Supp.3d 1021, 1032-34 (N.D. Cal. 2017), appeal docketed, No. 17-80086 (9th Cir. May 12, 2017); Brickman v. Facebook, Inc., 230 F.Supp.3d 1036, 1043-49 (N.D. Cal. 2017). Thus, the court grants defendants' motion for summary judgment.

I.

After holding numerous hearings and compiling extensive evidence, Congress enacted the TCPA to protect the privacy interests of residential telephone subscribers. See Telephone Consumer Protection Act of 1991, Pub. L. No. 102-243 § 2(10) (1991). Congress found that "[t]echnologies that might allow consumers to avoid receiving [robocalls] are not universally available, are costly, are unlikely to be enforced, or place an inordinate burden on the consumer." Id. § 2(11). In enacting the TCPA, Congress recognized that every call, whether to a phone at home or in a person's pocket, "uses some of the phone owner's time and mental energy, both of which are precious." Patriotic Veterans, Inc. v. Zoeller, 845 F.3d 303, 305-06 (7th Cir. 2017) ; see Moser v. FCC, 46 F.3d 970, 972 (9th Cir. 1995) ; Mey v. Venture Data, LLC, 245 F.Supp.3d 771, 777-80 (N.D. W. Va. 2017).

The TCPA makes it unlawful

to make any call (other than a call made for emergency purposes or made with the prior express consent of the called party) using any automatic telephone dialing system or an artificial or prerecorded voice-to any telephone number assigned to a paging service, cellular telephone service, specialized mobile radio service, or other radio common carrier service, or any service for which the called party is charged for the call, unless such call is made solely to collect a debt owed to or guaranteed by the United States[.]

47 U.S.C. § 227(b)(1)(A)(iii) ; see Telephone Consumer Protection Act of 1991, Pub. L. No. 102-243 § 2(12) (1991). In 2015, Congress added the final clause of the TCPA, which exempts calls made solely to collect a debt owed to or guaranteed by the United States. See Woods v. Santander Consumer USA Inc., No. 2:14-cv-02104-MHH, 2017 WL 1178003, at *3 (N.D. Ala. Mar. 30, 2017) (unpublished); Bipartisan Budget Act of 2015, Pub. L. No. 114-74 § 301, 129 Stat. 584, 588 (2015).

The TCPA authorizes the FCC to implement regulations that may exempt some calls from this subsection.

The [FCC] shall prescribe regulations to implement the requirements of this subsection. In implementing the requirements of this subsection, the [FCC]-
(A) shall consider prescribing regulations to allow businesses to avoid receiving calls made using an artificial or prerecorded voice to which they have not given their prior express consent;
(B) may, by rule or order, exempt from the requirements of paragraph (1)(B) of this subsection, subject to such conditions as the Commission may prescribe-
(i) calls that are not made for a commercial purpose; and
(ii) such classes or categories of calls made for commercial purposes as the Commission determines-
(I) will not adversely affect the privacy rights that this section is intended to protect; and
(II) do not include the transmission of any unsolicited advertisement;

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Cite This Page — Counsel Stack

Bluebook (online)
323 F. Supp. 3d 737, Counsel Stack Legal Research, https://law.counselstack.com/opinion/am-assn-of-political-consultants-v-sessions-nced-2018.