Now we’re talking!

As I’ve written on multiple occasions, the Telephone Consumer Protection Act (“TCPA”) is the broadest restriction on constitutionally protected speech in our nation’s history. Worse still, the statute is content and viewpoint specific–applying with unequal force depending on the intent and identity of the speaker–and risks chilling lawful speech owing to its intolerably vague terms. Although numerous district courts have now recognized the need to apply strict scrutiny to the statute, each has (rather remarkably) found that the TCPA is “narrowly tailored” to a compelling governmental interest. I have opined that the watered-down version of strict scrutiny being applied to the TCPA threatens to undermine our front-line protection of fundamental free speech rights, but that’s not the point of this article.

Rather, this article is about how to leverage pending First Amendment challenges that are now working their way through the Ninth Circuit Court of Appeals–yes that Ninth Circuit Court of Appeals--to obtain stays of TCPA cases.  Sound fun?

In Meza v. Sirius Xm Radio, Case No.: 17-cv-2252-AJB-JMA, 2018 U.S. Dist. LEXIS 164601 (S.D. Cal. Sept. 25, 2018), Sirius XM–yes that Sirius XM–moved to stay the case pending the outcome of ACA Intl and Marks. While that probably seemed like a good idea at the time, as of last Thursday it ceased being clever. But Siruis also moved to dismiss the case on constitutional grounds. Specifically, Sirius raised an as-applied equal protection challenge to the TCPA since the statute is a content-based restriction on speech that discriminates against non-governmental speech. And that, the Court agreed, was an argument meritorious enough to deserve a stay while the Ninth Circuit looks at the issue.

Not to bore you with the details, here are the details. In 2015 Congress amended the TCPA to allow the government–and only the government and its contractors–to use regulated technology to call folks to collect on government-backed debt without consent. So the government–and only the government–can speak using effective technology without your permission and in a way that regular private individuals can’t. Super dangerous stuff that shouldn’t be tolerated for a second in a free society.

But the courts have been tolerating it, and for years now.  As Meza lays out, multiple district courts have applied strict scrutiny–which is supposed to be really strict and protect Americans when their fundamental freedoms are in jeopardy of being taken away–to the TCPA and found that the statute is perfectly ok because, I mean, no one likes unwanted calls to their cell phones. Am I right?

The Hon. Anthony J. Battaglia is not so sure. After recognizing the need to apply strict scrutiny to the statute, he analyzed–apparently without invitation from the parties–the landscape of pending First Amendment challenges within the Ninth Circuit and recognized that there is at least one pending appeal on the issue. See Meza at *12 recognizing interlocutory appeal granted in Gallion v. Charter Commc’ns, Inc., 287 F. Supp. 3d 920 (C.D. Cal. 2018). In light of that appeal the Court stayed the litigation  reasoning that “[i]f the Ninth Circuit agrees with defendants that 47 U.S.C. § 227(b)(1)(A)(iii) is unconstitutional, then the Meza’s ATDS allegations would have to be dismissed as they allege both of their cellular telephones were called in violation of this provision.” Meza at *14.

Cool.

Now before you roll your eyes and suggest that the Ninth Circuit will surely uphold the TCPA as constitutional, just wait a second. The Ninth Circuit likes free speech. I mean Berkeley is in the Ninth Circuit folks. Plus the Ninth owes us a make-up call after Marks.(Just saying).

More importantly, the Court has applied a rather rigorous strict scrutiny paradigm in Free Speech challenges in the past. For instance the Ninth Circuit’s void for vagueness doctrine is among the best defined in the country. See discussion in Nunez v. City of San Diego, 114 F. 3d 935 (9th Cir. 1997). And it has repeatedly applied the strict scrutiny test to strike down ordinances that are not “narrowly tailored” because more speech than necessary is restricted. See e.g. Comite de Jornaleros v. City of Redondo Beach, 657 F. 3d 936 (9th Cir. 2011). Plus, the Ninth Circuit is already on record identifying the purpose of the TCPA as preventing telemarketing calls. See Van Patten v. Vertical Fitness Group, LLC, 847 F. 3d 1037 (9th Cir. 2017)(“Congress sought to protect consumers from the unwanted intrusion and nuisance of unsolicited telemarketing phone calls and fax advertisements.”) Obviously the TCPA is poorly tailored to preventing telemarketing calls–it prevents all manner of calls, not just those aimed at solicitation. And although the Ninth Circuit backed away from Van Patten a bit in Romero v. Department Stores National Bank, No. 16-56265 (9th Cir. Feb. 5, 2018) –stating without analysis that “Congress recognized unsolicited contact as a concrete harm regardless of caller or content”– Romero is unpublished and *ahem* wrong about Congressional intent.

To be sure, the TCPA was content neutral as penned–but it isn’t anymore. Ironically, Congress likely enacted the statute as content neutral in an effort to prevent triggering the same strict scrutiny analysis the courts are now applying. After all, the U.S. Supreme Court has long recognized that solicitation activities are constitutionally protected. See Int’l Soc’y for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672, 677-78 (1992). So discriminating against telemarketers would have triggered a robust equal protection challenge when the statute was enacted back in 1991. But the fight Congress avoided in 1991 it bought anew with its amendments in 2015–only this time its even worse because appellants are not telemarketers; informational callers trapped in a vague web of speech restrictions that was never supposed to apply to them in the first place. Notably, the TCPA’s legislative history includes double-digit references to telemarketing calls, and zero references to any other sort of call. So these as-applied challenges look really solid, and there is good reason to believe the Gallion panel will apply a robust strict scrutiny analysis and–tracking Congressional intent and Van Patten–reign in the statute once and for all.

At the end of the day, however, making predictions in TCPAland is a “fool’s game”– as Puja reminded us on Monday. Nonetheless, the current batch of First Amendment challenges before the Ninth Circuit deserve to be taken seriously. There is good and sound reason to believe that the TCPA is unconstitutional–especially as applied to non-telemarketers– as one court has now implicitly recognized in staying a pending TCPA case to await the Ninth Circuit’s ruling on the subject.