Court Rules That Law Banning Robocalls Is Not Unconstitutional Despite Being Content Based

• Posted on: Aug 14 2017

Robocalls.  We all get them.  They are annoying. But, are they legal? Not surprisingly, the answer depends on the circumstances involved.

In 1991, Congress passed the Telephone Consumer Protection Act (“TCPA”) to protect consumers from businesses that use automatic telephone dialing systems to deliver prerecorded messages without prior consent. Mims v. Arrow Fin. Servs., LLC, 565 U.S. 368, 370-71 (2012) (noting that the TCPA was enacted in response to “[v]oluminous consumer complaints about abuses of telephone technology.”); see also In re Rules & Regs Implementing the Tel. Consumer Prot. Act of 1991, 30 FCC Rcd. 7961, 7979-80 (2015) (citing S. Rep. No. 102-178, at 2, 4-5 (1991)). The TCPA bans various privacy-invading practices, including, but not limited to: calling homes before 8 a.m. or after 9 p.m. local time; making unsolicited phone calls or sending unsolicited text messages without prior written consent; making robocalls with prerecorded messages; using an automatic telephone dialing system to place phone calls; and calling consumers who registered their name and number(s) on the National Do Not Call Registry. The TCPA allows consumers who receive such calls to recover the greater of their actual monetary loss or $500 per violation, and allows for treble damages where a violation is willful or knowing. 47 U.S.C. § 227(b)(3).

Mejia v. Time Warner Cable, Inc.

Numerous lawsuits have been filed across the country by consumers who seek to hold businesses accountable for violating the TCPA. In August 2015, one such lawsuit was filed against Time Warner Cable Inc. (“Time Warner”) by a former customer who alleged, on behalf of all others similarly situated, that the company violated the TCPA. Mejia v. Time Warner Cable, Inc., 15-CV-6445 (JPO) (S.D.N.Y. Aug. 14, 2015).

In her complaint, Raquel Mejia (“Mejia”) alleged that Time Warner used an autodialer to make at least two unsolicited sales calls a day to her cellphone in an attempt to win back her business. Mejia claimed that she never consented to the calls, and did not have any business relationship with Time Warner after 2007. Mejia claimed that she terminated her service in 2007.

Mejia also claimed that she repeatedly informed Time Warner that she was not interested in the cable provider’s products and requested that the company stop calling her. According to the complaint, Time Warner denied her request and continued to make the unwanted cell phone calls at a rate Mejia contended “amounted to harassment.”

Mejia alleged that Time Warner violated the TCPA by calling her without her prior express written consent and by using an automatic telephone dialing system to make the unsolicited phone calls to her cell phone. Mejia sought to enjoin the practices complained of and recover damages for Time Warner’s violations of the act.

Procedural Background

Mejia filed her complaint on August 14, 2015. An amended complaint was filed on March 28, 2016, removing Mejia and adding Leona Hunter and Anne Marie Villa as plaintiffs.

Shortly thereafter, Allan Johnson filed a complaint in the Southern District of New York against Time Warner alleging violations of the TCPA, stemming from calls made to Johnson’s phone by the company using an “interactive voice response” calling system. Johnson v. Time Warner Cable Inc., No. 15 Civ. 6518 (S.D.N.Y. Aug. 18, 2015).

The parties moved for summary judgment in both the Mejia and Johnson actions. Time Warner also moved for judgment on the pleadings in both actions on the grounds that the TCPA violates the First Amendment. The Court denied the motions, except for Time Warner’s motion for summary judgment, which it granted in part and denied in part.

This Post addresses Time Warner’s motion on the pleadings.

The Court’s Ruling

Time Warner challenged the constitutionality of Section 227(b)(1)(A)(iii) of the TCPA under the First Amendment, arguing that the act impermissibly draws distinctions that are content based (relying on Reed v. Town of Gilbert, 135 S. Ct. 2218 (2015)), and failed strict scrutiny analysis (which “which requires the Government to prove that the restriction furthers a compelling interest and is narrowly tailored to achieve that interest.” (Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett, 131 S.Ct. 2806, 2817 (2011) (citation and internal quotation marks omitted)).

First, Time Warner argued that Section 227(b)(1)(A)(iii), which exempts from liability “call[s] made solely to collect a debt owed to or guaranteed by the United States,” is content based on its face, because it “define[s] regulated speech by particular subject matter.” (Quoting Reed, 135 S. Ct. at 2227). Second, Time Warner argued that because recent judicial and FCC decisions have made it clear that Section 227(b)(1) of the TCPA exempts governmental speakers, it contains a speaker-based restriction.

The Court agreed with Time Warner, finding that Section 227(b)(1)(A)(iii) of the TCPA is content-based. Notwithstanding, the Court found that the statute withstood constitutional challenge on the strength of two recent district court cases, in which the courts held that although the debt-collection exemption under Section 227(b)(1)(A)(iii) was content based, the TCPA satisfied strict scrutiny consideration. See Holt v. Facebook, Inc., No. 16 Civ. 02266, 2017 WL 1100564, at *7-10 (N.D. Cal. Mar. 9, 2017); Brickman v. Facebook, Inc., No. 16 Civ. 00751, 2017 WL 386238, at *4-9 (N.D. Cal. Jan. 27, 2017).

First, the Court found that the TCPA “serves a compelling government interest” – “to protect the privacy interests of residential telephone subscribers by placing restrictions on unsolicited, automated telephone calls to the home and to facilitate interstate commerce by restricting certain uses of facsimile (fax) machines and automatic dialers.” Citing S. Rep. No. 102-178, at 1 (1991).  This interest, held the Court, more than satisfied the first prong of the strict scrutiny analysis. Carey v. Brown, 447 U.S. 455, 471 (1980) (noting that “[t]he State’s interest in protecting the well-being, tranquility, and privacy of the home is certainly of the highest order in a free and civilized society.”).

In so holding, the Court rejected Time Warner’s argument that there is a distinction between residential privacy and cell phone privacy, and that the TCPA only applied to the former.

[T]he Court sees no reason that this compelling interest does not also extend to cell phones. See Patriotic Veterans, Inc. v. Zoeller, 845 F.3d 303, 305-06 (7th Cir. 2017) (“No one can deny the legitimacy of the state’s goal: Preventing the phone (at home or in one’s pocket) from frequently ringing with unwanted calls. Every call uses some of the phone owner’s time and mental energy, both of which are precious.”); see generally Riley v. California, 134 S. Ct. 2473, 2494-95 (2014) (“Modern cell phones are not just another technological convenience. With all they contain and all they may reveal, they hold for many Americans ‘the privacies of life.’” (quoting Boyd v. United States, 116 U.S. 616, 630 (1886))).

Second, the Court found that the TCPA was narrowly tailored because “[i]t imposes liability only on a party using an autodialer or artificial voice to make calls without the recipient’s consent.” The Court noted that Section 227(b)(1)(A)(iii) does not impose restrictions on calls made without the use of an autodialer or artificial voice, and “allows autodialer or artificial voice calls so long as consent has been secured.” In short, observed the Court, “Congress… carefully targeted the calls most directly raising its concerns about invasion of privacy, while also furthering its interest in collecting federal government debts.”

The Court rejected Time Warner’s argument that Section 227(b)(1)(A)(iii) of the TCPA was underinclusive:

Here, the government debt carve-out is a narrow exception from liability in furtherance of a compelling interest … . Indeed, the statute expressly authorizes the FCC to further “restrict or limit the number and duration of calls made . . . to collect a debt owed to or guaranteed by the United States.” And . . . “[t]he government debt exception would likewise be limited by the fact that such calls would only be made to those who owe a debt to the federal government.” This narrow exception, and the provision as a whole, are well-designed to further the interests that Congress sought to pursue with the TCPA.

Takeaway

In Mejia, Judge J. Paul Oekten joins two other district courts in finding that although the TCPA imposes content-based restrictions on speech, it nevertheless passes constitutional muster.  In so holding, Mejia answers the question at the top of this post by making it clear that robocalls and autodialed calls are legal only if the recipient gives prior written consent to receive them. The absence of such consent will result in a violation of the TCPA, even though the statute is not content neutral. Under the strict scrutiny test, such a narrowly tailored approach suffices to pass constitutional muster.