On August 22, a panel of the Ninth Circuit unanimously rejected Facebook, Inc.’s petition for rehearing of the Court’s June 13 decision, which reversed the dismissal of a putative class action alleging violations of the Telephone Consumer Protection Act. This opens the door for Facebook to attempt have the Supreme Court rule on whether the statute’s exception permitting calls to collect on debts owed to or guaranteed by the United States (the “debt-collection exception”) violates the First Amendment and renders the TCPA as a whole unconstitutional.

In the underlying case, the plaintiff, Noah Duguid, alleges that he is not a Facebook customer and did not consent to Facebook contacting him on his cell phone. He contends that he nevertheless received a series of text messages indicating that someone had accessed his Facebook account. Duguid filed suit, alleging violations of the TCPA on behalf of himself and two putative classes: (a) persons who received a message from Facebook without having provided Facebook with their cell phone numbers; and (b) persons who notified Facebook that they did not wish to receive messages but later received at least one text message.

The Northern District of California dismissed Duguid’s suit, holding that his complaint failed to adequately allege that Facebook sent the messages at issue using an automatic telephone dialing system (“ATDS”) as defined by the TCPA. In reversing this decision, the Ninth Circuit also rejected Facebook’s argument that the debt-collection exception renders the TCPA unconstitutional.

The First Amendment-based argument is that Section 227(b)(1)(A)(iii) of the TCPA contains an impermissible content-based restriction on speech 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 –

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(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).

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 at 2231.

In its June 13 Opinion, the Ninth Circuit agreed with Facebook that the debt-collection exception is an impermissible content-based restriction on speech. But rather than invalidating the TCPA as a whole, the Ninth Circuit severed the debt-collection exception from the remainder of the statute. The Court held that without this offending provision, the TCPA restricts speech in a content-neutral manner that is permissible under the First Amendment.

Now that the Ninth Circuit has denied the petition for rehearing, Facebook may seek to appeal its constitutional challenge to the TCPA to the Supreme Court. Because the implications of this case include the potential invalidation of all claims brought under § 227(b)(1)(A)(iii) of the TCPA, we will continue to closely monitor the matter and provide updates as events unfold.