A United States District Court Judge for the Southern District of Florida must have Masters Weekend on her mind, because she just tee-d up a constitutional challenge to our favorite statute.

The recent case out of the Southern District of Florida recaps and highlights the pertinent constitutional issues the TCPA brings.  Specifically, the Circuit Courts, and undoubtedly the Supreme Court, will eventually decide (1) whether the TCPA is content-based or content-neutral, (2) whether the TCPA passes strict scrutiny, and (3) should it not pass strict scrutiny, whether to sever the offending provision or strike down the Act as unconstitutional.  Wijesinha v. Bluegreen Vacations Unlimited, Inc. did not make a finding on any of these issues, but instead kept our interest alive.  2019 U.S. Dist. LEXIS 57136.  And, for those of us who anxiously await the results brewing before the Ninth Circuit Court of Appeal in the case Gallion v. Charter Communications, Inc., case no. 18-55667, this reminder serves to validate the importance of the constitutional challenges you bring to the TCPA.

In Wijesinha the Court declined to rule on Defendant’s First Amendment challenge to the commonly known “government-debt” exception found in section 227(b)(1)(A)(iii) of the TCPA, Wijesinha. *8-9.  Plaintiff’s case did not implicate the government-debt exception, which Congress enacted as part of the 2015 amendments to the Act.  Wijesinha instead alleges that Defendant, “a vacation ownership and experiences company,” called his cellphone to push sales without his prior consent, and he seeks to recover damages for such phone call on behalf of himself and a putative class.  The Court was correct in finding the government-debt exception did not apply here. 

But, quiet on the green.  Notably without ruling, the Court’s analysis continued.  The Court cited numerous district court cases to bolster their finding that even if the government-debt exception is held to be unconstitutional, severance of the offensive provision would be the proper remedy.  Much like Happy Gilmore’s unconventional antics on the green, the Court’s circuitous findings are anything but par for the [TCPA] course.

In September of 2018, the Chamber of Commerce of the United States of America explained why the Supreme Court would take a different view on this issue in their Brief of Amicus Curiae Supporting Appellants.  Gallion v. Charter Communications, Inc., Dkt. No. 12, at 4.  As discussed within, the precedence of our highest court does not align with these cited cases.  “The Supreme Court has ruled that the appropriate remedy for a speech restriction with an impermissible content-based exemption is to set aside the restriction, not to set aside the exemption.” Id.

The Southern District of Florida, instead, addressed a hypothetical argument in reasoning, “Defendant does not argue the pre-2015 version of the TCPA is unconstitutional; indeed, ‘the version of the TCPA without the [government-debt] exception has been upheld as a valid time, place or manner restriction by several courts throughout the country.’ … The Court is not convinced removing this amendment would somehow render a once constitutional statute unconstitutional.” Bluegreen, at *11.

Even with this declaration, the Court continues on to hold that Plaintiff’s claims survive whether the government-debt amendment is stricken or upheld. 

So, the questions remain.  Will the government-debt exception be held constitutionally invalid under strict scrutiny analysis?  Inevitably forthcoming, when the Supreme Court addresses the TCPA’s content-based restrictions, like the government-based exception, will they decide to sever the offending provision?  I think we can now guess which route the Southern District of Florida will take.  As for the Supreme Court, my guess might be better than Vegas’ present odds for Tiger, but forecasting TCPA case law is anything but certain.  Stay tuned as the results come rolling in.

For an in-depth discussion of Gallion v. Charter Communications, Inc. and the issues before the 9^th Circuit, follow me here.

And, hey, out of all the Adam Sandler movies I could have paralleled, you’re Happy I went with this one, aren’t you?