Burr & Forman

07.9.2019   |   ATDS, Blog Articles, Ninth Circuit, Telephone Consumer Protection Act

Ninth Circuit Finds that the TCPA Debt Collection Exception Violates the First Amendment

Last month, in Duguid v. Facebook, Inc., 17-15320, 2019 WL 2454853 (9th Cir. June 13, 2019), the United States Court of Appeals for the Ninth Circuit (“Ninth Circuit”) held that the debt collection exception to the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227(b)(1)(A)(iii), violates the First Amendment because it is content-based and fails to pass strict scrutiny review.  Duguid is not a Facebook user and did not consent to be contacted by Facebook.  Duguid alleged that Facebook violated the TCPA in 2014 by sending text message notifications to his cell phone using an ATDS about unrecognized access to his nonexistent Facebook account.   Duguid attempted to stop these notifications through requests over text message and email, but he nevertheless continued to receive the text messages from Facebook.  Duguid sued Facebook for these alleged TCPA violations on behalf of two classes of individuals in 2016.  The district court dismissed Duguid’s amended complaint with prejudice for inadequately alleging that Facebook met the prerequisite for TCPA violations by using an ATDS, which led to this appeal.

In opposition to the appeal, Facebook argued that the Ninth Circuit should affirm the district court’s ruling because the equipment Duguid characterized in the amended complaint was not an ATDS and that Facebook was entitled to dismissal on the pleadings because the TCPA excepts “calls made for emergency purposes” under 47 U.S.C. § 227(b)(1)(A).  The Ninth Circuit rejected both of those arguments.  First, it was determined that Duguid adequately alleged that Facebook sent him text messages using “equipment which has the capacity … to store numbers to be called … and to dial such numbers” even if the messages appeared personalized.  Facebook also made an argument for a narrowed interpretation of Marks v. Crunch San Diego, LLC, 904 F.3d 1041 (9th Cir. 2018), cert. dismissed, 139 S. Ct. 1289 (2019) to demonstrate otherwise, which was rejected.  Second, the Ninth Circuit noted that, since it was reviewing the allegations in the Complaint as true at the Rule 12(b)(6) dismissal stage, Duguid adequately alleged that he did not have a Facebook account so any text messages pertaining to the account would not fall under the “emergency purposes” exception to the TCPA.

The Ninth Circuit, however, did accept the argument that the TCPA’s debt collection exception, which prohibits calls using an ATDS for nonemergency purposes and without prior express consent “unless such call is made solely to collect a debt owed to or guaranteed by the United States,” violates the First Amendment.  The Ninth Circuit found that this debt collection exception was content-based, rather than content neutral, discrimination.  Prior to its amendment, the TCPA was determined to be content neutral and to satisfy intermediate scrutiny “‘because it was narrowly tailored to advance the “government’s significant interest in residential privacy’ and left open ‘ample alternative channels of communication.’”  Post-amendment however, the Ninth Circuit found that the debt collection exception adds a purposeful element to change the framework of the TCPA to favor speech “solely to collect a debt owed to or guaranteed by the United States.”  This, in turn, constitutes “targeted speech based on communicative content,” which is subject to strict scrutiny and presumed unconstitutional by the courts unless the government proves that the statute is “narrowly tailored to serve compelling state interests” as provided in  Reed v. Town of Gilbert, Ariz., ––– U.S. ––––, 135 S. Ct. 2218, 2226, 192 L.Ed.2d 236 (2015).  The Ninth Circuit then, unsurprisingly, found that the government’s interest in the “protection of personal and residential privacy” for the debt collection exception to the TCPA failed to pass this strict scrutiny.

Going forward, the Ninth Circuit determined that, while it is violative of the First Amendment, the debt collection exception to the TCPA is severable from the rest of the statute as provided in 47 U.S.C. § 608, and therefore the remainder of the TCPA stands.  The Ninth Circuit noted that this conclusion was also reached by the Fourth Circuit in Am. Ass’n of Political Consultants, Inc. v. Fed. Communications Comm’n, 923 F.3d 159, 161 (4th Cir. 2019) and Cahaly v. Larosa, 796 F.3d 399, 402 (4th Cir. 2015) (quoting S.C. Code § 16-17-446(A)), and the Eighth Circuit in Gresham v. Swanson, 866 F.3d 853, 854–55 (8th Cir. 2017) (citing Minn. Stat. § 325E.27(a)), cert. denied, ––– U.S. 138 S. Ct. 682, 199 L.Ed.2d 536 (2018).  On the other hand, the Seventh Circuit Court upheld an Indiana TCPA analogue statute as content-neutral and consistent with the First Amendment in Patriotic Veterans, Inc. v. Zoeller, 845 F.3d 303, 306 (7th Cir.).  It remains to be seen then how the other Circuit Courts of Appeal will rule, with the balance so far favoring the TCPA debt collection provision as being unconstitutional.

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