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Am. Ass'n of Political Consultants, Inc. v. FCC

United States Court of Appeals for the Fourth Circuit

December 12, 2018, Argued; April 24, 2019, Decided

No. 18-1588

Opinion

 [*161]  KING, Circuit Judge:

The American Association of Political Consultants, Inc. and three other plaintiffs (hereinafter the "Plaintiffs") appeal from a summary judgment award made by the district court to the defendants, the Federal Communications [**2]  Commission (the "FCC") and the Attorney General (collectively the "Government"). See Am. Ass'n of Political Consultants v. Sessions, 323 F. Supp. 3d 737 (E.D.N.C. 2018) (the "Opinion").1 The Plaintiffs initiated this litigation in May 2016 in the Eastern District of North Carolina, alleging that part of the Telephone Consumer Protection Act of 1991 (the "TCPA") contravenes the Free Speech Clause of the First Amendment. As pertinent here, the TCPA prohibits calls to cell phones by use of an automated dialing system or an artificial or prerecorded voice, subject to three statutory exemptions (the "automated call ban"). The Plaintiffs allege that one of the statutory exemptions to the automated call ban — created by a 2015 TCPA amendment — is facially unconstitutional under the Free Speech Clause. That exemption authorizes automated calls that relate to the collection of debts owed to or guaranteed by the federal government (the "debt-collection exemption").2 According to the Plaintiffs, the free speech infirmity of the debt-collection exemption is not severable from the automated call ban and renders the entire ban unconstitutional.

In awarding summary judgment to the Government in March 2018, the Opinion rejected the free speech challenge interposed by the Plaintiffs. The district court applied strict scrutiny review to the debt-collection [**3]  exemption and ruled that it does not violate the Free Speech Clause. As explained below, we agree that strict scrutiny review applies in this case but conclude that the debt-collection exemption does not satisfy such a review. As a result, we agree with the Plaintiffs that the debt-collection exemption contravenes the Free Speech Clause. In agreement with the Government, however, we are satisfied to sever the flawed exemption from the automated call ban. We therefore vacate the judgment and remand.

Enacted in 1991, the TCPA was a response by Congress to the reactions of American consumers over intrusive and unwanted phone calls. As a result of congressional  [*162]  concern with automated phone calls, ] the automated call ban prohibits phone calls to cell phones that use "any automatic telephone dialing system or an artificial or prerecorded voice." See 47 U.S.C. § 227(b)(1)(A).3 The automated call ban does not, however, reach and prohibit all calls made with those technologies. For example, the TCPA authorizes automated phone calls to cell phones if they satisfy one of the statutory exemptions specified in the automated call ban. When it was enacted in 1991, the TCPA created two statutory exemptions to the ban, both of which are yet in effect. Under the first [**4]  exemption, if an automated call to a cell phone is initiated "for emergency purposes," it does not contravene the automated call ban (the "emergency exemption"). See id. Pursuant to the second statutory exemption, an automated call made to a cell phone with "the prior express consent of the called party" likewise does not violate the ban (the "consent exemption"). See id.

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923 F.3d 159 *; 2019 U.S. App. LEXIS 12127 **

AMERICAN ASSOCIATION OF POLITICAL CONSULTANTS, INC.; DEMOCRATIC PARTY OF OREGON, INC.; PUBLIC POLICY POLLING, LLC; WASHINGTON STATE DEMOCRATIC CENTRAL COMMITTEE, Plaintiffs — Appellants, and TEA PARTY FORWARD PAC, Plaintiff, v. FEDERAL COMMUNICATIONS COMMISSION; WILLIAM P. BARR, in his official capacity as Attorney General of the United States, Defendants — Appellees.

Subsequent History: Rehearing, en banc, denied by Am. Ass'n of Political Consultants, Inc. v. FCC, 2019 U.S. App. LEXIS 18688 (4th Cir., June 21, 2019)

US Supreme Court certiorari granted by Barr v. Am. Ass'n of Political Consultants, 140 S. Ct. 812, 205 L. Ed. 2d 449, 2020 U.S. LEXIS 2 (U.S., Jan. 10, 2020)

Motion denied by Barr v. Consultants, 2020 U.S. LEXIS 3053 (U.S., June 8, 2020)

Prior History:  [**1] Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. 5:16-cv-00252-D. James C. Dever III, District Judge.

Am. Ass'n of Political Consultants v. Sessions, 323 F. Supp. 3d 737, 2018 U.S. Dist. LEXIS 48883 (E.D.N.C., Mar. 24, 2018)

Disposition: VACATED AND REMANDED.

CORE TERMS

exemption, debt-collection, automated, ban, phone, content-based, privacy, contravenes, intrusive, tailored, flawed, underinclusive, consumers, narrowly, facially

Antitrust & Trade Law, Consumer Protection, Telemarketing, Business & Corporate Compliance, Communications Law, Federal Acts, Telephone Consumer Protection Act, Civil Procedure, Appeals, Standards of Review, De Novo Review, Summary Judgment Review, Standards of Review, Judgments, Summary Judgment, Entitlement as Matter of Law, Reviewability of Lower Court Decisions, Preservation for Review, Constitutional Law, Fundamental Freedoms, Freedom of Speech, Scope, Governments, Legislation, Severability