On January 17, in Kibbee v. Smith-Palluck Associates Corp., No. 2:18-cv-01848, a putative class action pending in the United States District Court for the District of Nevada, the Court entered an order notifying the United States Attorney General that the constitutionality of the Telephone Consumer Protection Act has been called into question and giving the Attorney General 60 days to intervene if it chooses to do so.

Plaintiff Jason Kibbee asserts that the defendant, which does business as Las Vegas Athletic Clubs, called his cell phone without his consent in an effort to collect payments due for a gym membership.  In moving to dismiss, Smith-Palluck asserts the claim fails as a matter of law because the provision of the TCPA at issue contains a content-based restriction on speech that violates the First Amendment of the Constitution.

A law regulating speech is content-based if it “applies to particular speech because of the topic discussed or the idea or message expressed.”  Reed v. Town of Gilbert, 135 S. Ct. 2218, 2227 (2015).  Such laws are presumed to be invalid under the First Amendment.  United States v. Playboy Entm’t Grp., 529 U.S. 803, 817 (2000).  They are permitted only if they can survive strict scrutiny – that is, if the Government can establish that “the restriction furthers a compelling interest and is narrowly tailored to achieve that interest.”  Reed, 135 S. Ct. at 2231.  Additionally, because restrictions that are based on the “identity of the speaker are all too often simply a means to control content,” the Supreme Court has held that laws that favor some speakers over others “demand strict scrutiny when the legislature’s speaker preference reflects a content preference.”  Id. at 2230.

In Kibbee, the defendant asserts that Section 227(b)(1)(A)(iii) of the TCPA contains an impermissible content-based restriction because it treats calls made by persons collecting debts owed to the United States differently from other types of calls.  Specifically, the provision makes it unlawful:

(A)     to make any call (other than a call made for emergency purposes or made with the prior express consent of the called party) using any automatic telephone dialing system or an artificial or prerecorded voice —

*  *  *

(iii)     to any telephone number assigned to a paging service, cellular telephone service, specialized mobile radio service, or other radio common carrier service, or any service for which the called party is charged for the call, unless such call is made solely to collect a debt owed to or guaranteed by the United States;

47 U.S.C.S. § 227(b)(1)(A)(iii) (emphasis added).As an alternative to granting the motion to dismiss, Smith-Palluck has requested that the matter be stayed pending the outcome of a similar challenge to the constitutionality of the TCPA pending before the Ninth Circuit in Gallion v. Charter Communications, Inc., No. 18-55667 (9th Cir. Mar. 8, 2018).

Because of the far-reaching implications – the potential invalidation of all claims brought under § 227(b)(1)(A)(iii) of the TCPA – we will continue to closely monitor the proceedings in Kibbee and Gallion and provide updates as events unfold.