Wreyford v. Citizens for Transportation Mobility, Inc.

957 F. Supp. 2d 1378, 2013 WL 3965244, 2013 U.S. Dist. LEXIS 108541
CourtDistrict Court, N.D. Georgia
DecidedAugust 1, 2013
DocketCivil Action No. 1:12-CV-2524-RLV
StatusPublished
Cited by2 cases

This text of 957 F. Supp. 2d 1378 (Wreyford v. Citizens for Transportation Mobility, Inc.) is published on Counsel Stack Legal Research, covering District Court, N.D. Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Wreyford v. Citizens for Transportation Mobility, Inc., 957 F. Supp. 2d 1378, 2013 WL 3965244, 2013 U.S. Dist. LEXIS 108541 (N.D. Ga. 2013).

Opinion

ORDER

ROBERT L. VINING, JR., Senior District Judge.

The plaintiff brings this action against the defendants for violations of the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227, for the alleged placement of telephone calls to cell phones using an automatic telephone dialing system and prerecorded or artificial voice message. Currently before the court is defendant Citizens for Transportation Mobility’s (“CTM”) motion for judgment on the pleadings [Doc. No. 57] and On Target’s notice of joinder in CTM’s motion for judgment on the pleadings [Doc. No. 59]. Additionally before the court is a motion for oral argument on the motion for judgment on the pleadings [Doc. No. 81].

I. Background

On March 15, 2013, CTM filed a motion for judgment on the pleadings. In their motion, the defendants bring an as-applied challenge to the constitutionality of the TCPA, arguing that applying the TCPA to prohibit the automated calls to cell phones at issue in this ease would violate the First Amendment, Defendant On Target Public Affairs has joined CTM’s motion. Thereafter, pursuant to Federal Rule of Civil Procedure 5.1, the United States filed its notice of intervention and filed a memoran[1380]*1380dum in defense of the constitutionality of the TCPA.

CTM is a non-profit corporation organized under the law of the State of Georgia. CTM was organized to advocate for the passage of a Special District Transportation Sales and Use Tax (“TSPLOST”) for the funding of certain transportation projects in the metropolitan Atlanta area. As part of its advocacy program, CTM engaged the services of defendant On Target Public Affairs LLC, a marketing firm, to handle telephone calls to potential voters.

According to the plaintiffs complaint, the plaintiff alleges that on July 18, 2012, and July 20, 2012, On Target initiated two telephone calls using a prerecorded voice message regarding the transportation referendum to his cellular phone number using an automatic dialing system. The plaintiff further alleges that CTM hired On Target to initiate the calls on CTM’s behalf to advocate the passage of the TSPLOST referendum. The defendants now challenge the constitutionality of the TCPA as applied to this case.

II. Discussion

The TCPA prohibits

any person within the United States ... 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....

47 U.S.C. § 227(b)(1)(A). The TCPA regulates “any call,” regardless of its message. Thus, section 227(b)(1)(A) is a content-neutral time, place, and manner restriction on speech. See Moser v. F.C.C., 46 F.3d 970, 972 (9th Cir.1995) (analyzing § 227(b)(1)(B) of the TCPA, which prohibits “any telephone call to any residential line using an artificial or prerecorded voice,” as a content-neutral time, place, and manner restriction). Therefore, under the prevailing standard of review, the TCPA must be upheld if it (1) serves a significant government interest, (2) is narrowly tailored to serve that interest, and (3) leaves open ample alternative channels for the communication of information. Ward v. Rock Against Racism, 491 U.S. 781, 791, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989).

A. Section 227(b)(1)(A) of the TCPA serves a significant government interest

The government contends that Congress passed the TCPA in order to address threats to consumer privacy, nuisance to call recipients, and potential costs associated with unsolicited calls made to cellular telephones. The defendants all but concede that the government has a significant interest in protecting users of cellular telephones from invasions of privacy, nuisance, and uninvited costs. The court agrees with the government.

As the government points out, in addition to protecting privacy and nuisance associated with unsolicited autodialed calls and prerecorded messages, the government has a significant interest in preventing unsolicited calls from imposing uninvited costs upon telephone subscribers. See S.Rep. No. 102-178 at 2, reprinted in 1991 U.S.C.C.A.N. 1668, 1969 (noting that “unsolicited calls placed to ... cellular ... telephone numbers often impose a cost on the called party [as] cellular users must pay for each incoming call”). Thus the government can easily establish a substantial government interest in this case.

[1381]*1381 B. Section 227(b)(1)(A) of the TCPA is narroivly tailored

With regard to the second prong, the defendants contend that section 227(b)(1)(A) is not narrowly tailored to serve the government’s interests because it operates as a “total ban on cellular telephone calls” and therefore “effectively silences a wide range of political speech.” The defendants also argue that the TCPA is not narrowly tailored because it bans non-commercial calls like the political calls in this case, emphasizing that “non-commercial calls do not burden consumers to the extent that commercial calls do.” The government responds by pointing out that the TCPA does not operate to ban all cellular telephone calls, permitting such calls with consent of the recipient. The government further contends that the defendants misconstrue the government’s interest and the standard of review in this case because, under intermediate scrutiny for content neutral regulation, Congress is not required to use the least restrictive means of promoting the government interest. On all points the court agrees with the government.

A statute is narrowly tailored if the “regulation promotes a substantial government interest that would be achieved less effectively absent the regulation.” Ward, 491 U.S. at 799, 109 S.Ct. 2746. The essence of narrow tailoring is to focus upon the source of the evils the government seeks to eliminate, without significantly restricting a substantial quantity of speech that does not create the same evils. Turner Broad. Sys., Inc. v. F.C.C., 520 U.S. 180, 216-18, 117 S.Ct. 1174, 137 L.Ed.2d 369 (1997). So long as the means chosen are not substantially broader than necessary to achieve the government’s interests, a regulation will not be invalid simply because a court concludes that the government’s interest could be adequately served by some less speech-restrictive alternative. Id.

In this case, Congress was concerned with intrusive and potentially costly uninvited calls to cellular phone users, regardless of the content of the message. Congress focused on the intrusiveness of automated or prerecorded telephone calls.

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957 F. Supp. 2d 1378, 2013 WL 3965244, 2013 U.S. Dist. LEXIS 108541, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wreyford-v-citizens-for-transportation-mobility-inc-gand-2013.