On December 11, 2015, the United States Department of Justice filed an intervenor’s brief in support of the constitutionality of the “emergency calls exception” in the Telephone Consumer Protection Act (“TCPA”), a federal statute regulating the usage of automatic telephone dialer systems. The issue embroils the government in a consumer dispute with Facebook, which is defending a putative class action in the United States District Court for the Northern District of California. Although not a party to the case, the DOJ has the ability to intervene in order to brief courts regarding constitutional questions, and has chosen to do so against the tech titan in support of a controversial law.
The plaintiff in this case alleges that “Facebook violated the Act by sending him automated text messages, without his consent, notifying him that someone had logged into a Facebook account.” Plaintiff claims that he does not have a Facebook account, yet still received the notifications. As such, Plaintiff seeks statutory damages under the TCPA for each alleged violation, and purports to represent two classes of consumers affected by such communications.
Facebook moved to dismiss on several grounds, including that the TCPA violates the First Amendment by attempting to “impos[e] liability on Facebook for sending non-commercial, privacy-protective login notifications.” Facebook argued that the TCPA’s distinction between messages sent for emergency purposes and those sent for other reasons “regulates speech on the basis of its content and is therefore subject to strict scrutiny,” and thus cannot survive. Facebook’s argument cited the United States Supreme Court’s 2015 decision in Reed v. Town of Gilbert, which held that a “benign motive” is irrelevant if a law facially discriminates based on content.
The DOJ distinguished the TCPA from the statute at issue in Reed, arguing, “Where significant government interests permit a blanket prohibition, the Supreme Court has noted, it is not content-based discrimination to exempt from that prohibition a narrow band of speech that is unrelated to the significant government interest at stake. That is exactly what has occurred in the context of the TCPA.” Its brief noted that the TCPA only has one exception for emergency calls, whereas the Reed law exempted 23 categories.
A hearing on the motion was originally scheduled for January 7, but was vacated to allow Facebook to respond to the DOJ’s brief. The Court has not yet determined if oral argument will be necessary.
Troutman Sanders LLP has unique industry-leading expertise with the TCPA, with experience gained trying TCPA cases to verdict and advising Fortune 50 companies regarding their compliance strategy. We will continue to monitor regulatory and judicial interpretation of the TCPA in order to identify and advise on potential risks.