287 F. Supp. 3d 920
C.D. Cal.2018Background
- Plaintiff Steve Gallion filed a putative TCPA class action alleging defendants placed autodialed and prerecorded-voice calls to his cell phone without prior express consent in violation of 47 U.S.C. § 227(b)(1)(A)(iii).
- Defendants moved for judgment on the pleadings (Fed. R. Civ. P. 12(c)), contending the TCPA is facially unconstitutional under the First Amendment after Reed v. Town of Gilbert because the 2015 government-debt exception makes the statute content- and speaker-based.
- The United States intervened to defend the TCPA; plaintiff and government argued the government-debt exception is relationship-based and that the TCPA survives strict scrutiny.
- The court concluded the government-debt exception renders the TCPA content-based under Reed, but found the TCPA advances a compelling interest in residential privacy and is narrowly tailored, thus surviving strict scrutiny.
- The court denied defendants’ Rule 12(c) motion, granted defendants’ request to certify the order for interlocutory appeal under 28 U.S.C. § 1292(b), and granted a stay pending the D.C. Circuit’s decision in ACA International regarding the definition/scope of ATDS.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether §227(b)(1)(A)(iii) is content-based under Reed | The government-debt exception is relationship-based (creditor/debtor), not content-based | The debt exception requires examining message content (whether call is to collect federal debt), so law is content-based | The court: content-based on its face under Reed |
| Whether a content-based TCPA survives strict scrutiny | TCPA serves compelling privacy interest and exception is narrow; less-restrictive alternatives are inadequate | Exception makes statute underinclusive/overinclusive and less-restrictive alternatives exist | The court: TCPA serves compelling interest and is narrowly tailored; strict scrutiny satisfied |
| Standing to raise facial First Amendment challenge | N/A (plaintiff bringing suit) | Defendants argued they lack standing to challenge severable exception | Court: defendants have standing to challenge underinclusiveness; standing adequate |
| Whether to stay case pending ACA Int'l (D.C. Cir.) | Plaintiff: ACA irrelevant because complaint also alleges prerecorded-voice claims; delay risks lost evidence | Defendants: D.C. Circuit decision on ATDS may be dispositive and conserve resources | Court: granted stay as decision likely to simplify issues and brief in duration |
Key Cases Cited
- Reed v. Town of Gilbert, 135 S. Ct. 2218 (content-based regulation presumption and strict scrutiny framework)
- Williams-Yulee v. Florida Bar, 135 S. Ct. 1656 (strict scrutiny not invariably fatal; narrow-tailoring standards)
- Gomez v. Campbell-Ewald Co., 768 F.3d 871 (9th Cir.) (prior Ninth Circuit decision upholding TCPA as content-neutral under intermediate scrutiny)
- Moser v. FCC, 46 F.3d 970 (prior Ninth Circuit treatment of TCPA privacy interests)
- Brickman v. Facebook, 230 F. Supp. 3d 1036 (N.D. Cal.) (holding TCPA content-based under Reed but surviving strict scrutiny)
- Holt v. Facebook, 240 F. Supp. 3d 1021 (N.D. Cal.) (same conclusion as Brickman)
- Greenley v. Laborers' Int'l Union of N. Am., 271 F. Supp. 3d 1128 (D. Minn.) (analyzing debt exception as content-based but upholding TCPA under strict scrutiny)