Charter Communications used autodialing equipment to contact consumers’ cell phones with marketing messages. One such consumer, Steve Gallion, who had not consented to receive such messages, brought a class action against Charter for violating the Telephone Consumer Protection Act (TCPA), which prohibits the use of autodialers and prerecorded messages to call cell phones without the subscriber’s consent. The company moved to dismiss the case, arguing that the TCPA’s prohibition violates the First Amendment. The district court denied the motion but certified its order for appeal, and the U.S. Court of Appeals for the Ninth Circuit granted leave to appeal.
Public Citizen filed an amicus curiae brief in November 2018 arguing that prior Ninth Circuit precedent upholding the TCPA remains valid in the wake of intervening Supreme Court decisions and changes to the statute; that the TCPA is not a content-based restriction on speech; that the privacy interests the TCPA protects are compelling; and that the defendant, as a commercial speaker, can succeed on its First Amendment challenge only if it demonstrates that the law is substantially overbroad as applied to noncommercial speech, which it has not done.
On July 8, 2019, the court of appeals issued an unpublished opinion holding that an exception in the TCPA for calls to collect government-guaranteed debt made the TCPA an unconstitutional content-based restriction on speech. The court further held that the remedy for that constitutional problem was to sever the exception from the statute, not to dismiss the plaintiff’s TCPA claims. These holdings followed from a published opinion issued a month earlier in a case called Facebook v. Duguid.
Facebook filed a petition for a writ of certiorari challenging the decision in Duguid, and Charter followed by filing one in Gallion. At that point, PCLG joined as cocounsel in the representation of Mr. Gallion and assisted in the preparation of a brief in opposition. The Supreme Court held Charter’s petition pending its decision in Barr v. American Association of Political Consultants, which presented exactly the same questions. After its ruling in Barr that the debt-collection exception is severable from the remainder of the statute, the Supreme Court denied certiorari on July 9, 2020.