Constitutional challenges to the TCPA just entered a new an interesting dimension, with a possible conflict between the Ninth Circuit’s decision in Gallion v. United States, 2019 U.S. App. LEXIS 20196 (9^th Cir. July 8, 2019), and the Supreme Court’s decision in PDR Network v. Carlton & Harris Chiropractic, 204 L. Ed. 2d 433 (U.S. 2019).

The Ninth Circuit, not surprisingly, followed its decision in Duguid and severed the government-backed debt exemption from the TCPA. But the court did not stop there; it also held that the pre-2015 version of the TCPA is constitutional and, significantly, shielded content-based FCC orders from review:

“Charter also challenges several FCC orders promulgating exceptions to the TCPA. But the FCC’s regulatory exceptions are not before this court. The proper venue to challenge an FCC order is directly in a court of appeals, not in the district court.”

That latter holding sets up a possible conflict with PDR Network, where the Supreme Court reversed and remanded a case to determine whether district courts are, in fact, prohibited from considering a challenge to an FCC order. Although the Supreme Court did not actually resolve the issue, a majority of the justices were plainly concerned with the due process implications of prohibiting a defendant from challenging an FCC order in a private enforcement action. Which is exactly how Gallion started – an individual sued a cable service provider for TCPA violations.

And if due process concerns permeated PDR Network, those concerns are on steroids in Gallion. The PDR defendant was simply prohibited from arguing that the TCPA statute did not apply to its conduct. But in Gallion, the defendant was prohibited from arguing that the TCPA violates the First Amendment.

That’s right. The Ninth Circuit held that the Hobbs Act prevented a defendant from arguing that FCC orders render the TCPA an unconstitutional, content-based restriction on speech. And it did so without even mentioning PDR Network, which the Supreme Court decided just a few weeks earlier.

If there was ever a path to en banc review or certiorari, this is it: the Ninth Circuit rendering a decision that conflicts with a recent Supreme Court decision.

The Gallion court’s holding that content-based restrictions in the pre-2015 version of the TCPA are constitutional is also problematic. In doing so, it relied on pre-2015 Ninth Circuit decisions. But in 2015, the Supreme Court reversed the Ninth Circuit’s approach to commercial speech and issued a landmark ruling in Reed v. Town of Gilbert. At a minimum, the pre-2015 version of the TCPA deserved a fresh look under Reed, setting up another possible conflict with Supreme Court precedent.

All of this is to say that the final chapter on First Amendment challenges to the TCPA has likely yet to be written. If you are faced with a TCPA case or would like to discuss the challenges generally, give us a call.