323 F. Supp. 3d 737
E.D.N.C.2018Background
- Plaintiffs (political and polling organizations) challenged the TCPA ban on autodialed or prerecorded calls to cell phones (47 U.S.C. § 227(b)(1)(A)(iii)) as violating the First Amendment.
- Plaintiffs sought to use autodialers and prerecorded messages for political communications; they argued statutory and FCC-created exemptions favor other speech (e.g., government-debt calls).
- Defendants (U.S. AG and the FCC) moved for summary judgment arguing the statute is content-neutral or, alternatively, passes strict scrutiny.
- The court treated the government-debt exception as facially content-based and therefore subject to strict scrutiny.
- The court held the TCPA furthers the compelling interest in residential privacy, found the government-debt exception and delegated FCC exemptions not to cause fatal underinclusiveness or overinclusiveness, and rejected proposed less-restrictive alternatives.
- The court granted defendants’ summary judgment, denied plaintiffs’, and closed the case.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether §227(b)(1)(A)(iii) is content-based | The government-debt exception and FCC exemptions make the statute content-based because they distinguish protected political speech from other speech | The statute is content-neutral; exceptions reflect relationships or permissible classifications | The court held the government-debt exception is facially content-based and thus triggers strict scrutiny |
| Whether the statute survives strict scrutiny | Plaintiffs argued exemptions and delegation show underinclusiveness and that less restrictive alternatives exist | Defendants argued protecting residential privacy is a compelling interest and the statute is narrowly tailored | Court held protecting residential privacy is compelling and the TCPA survives strict scrutiny |
| Whether exemptions and FCC delegation render the statute underinclusive or overinclusive | Exemptions (statutory and FCC) and FCC’s broad delegation will swallow the rule and favor speakers like debt collectors | Defendants argued exemptions are narrow, Congress limited FCC authority, and delegated authority can be exercised content-neutrally | Court found the government-debt exception and FCC delegation not sufficiently underinclusive or overinclusive to invalidate the statute; court declined to adjudicate validity of specific FCC orders due to lack of jurisdiction |
| Whether less-restrictive alternatives exist | Plaintiffs proposed time-of-day limits, mandatory ID disclosure, and do-not-call lists | Defendants argued those alternatives would not protect residential privacy as effectively | Court held proposed alternatives are not as effective and rejected them |
Key Cases Cited
- Reed v. Town of Gilbert, 135 S. Ct. 2218 (2015) (facial content-based regulations trigger strict scrutiny)
- Cahaly v. Larosa, 796 F.3d 399 (4th Cir. 2015) (analysis of robocall restrictions and tailoring/overinclusiveness)
- Mims v. Arrow Fin. Servs., LLC, 565 U.S. 368 (2012) (recognizing TCPA’s findings about robocalls and residential privacy)
- Frisby v. Schultz, 487 U.S. 474 (1988) (protecting unwilling listeners in the home supports regulation of intrusive communications)
- Williams-Yulee v. Fla. Bar, 135 S. Ct. 1656 (2015) (strict scrutiny standards and that strict scrutiny is not necessarily fatal)
- Ashcroft v. ACLU, 542 U.S. 656 (2004) (least-restrictive-means requirement under strict scrutiny)
- Reno v. ACLU, 521 U.S. 844 (1997) (less-restrictive-alternative requirement in First Amendment review)