United States District Court, E.D. North Carolina, Western Division
AMERICAN ASSOCIATION OF POLITICAL CONSULTANTS, INC., DEMOCRATIC PARTY OF OREGON, INC., PUBLIC POLICY POLLING, LLC, TEA PARTY FORWARD PAC, and WASHINGTON STATE DEMOCRATIC CENTRAL COMMITTEE, Plaintiffs,
JEFFERSON SESSIONS, in his official capacity as Attorney General of the United States, and FEDERAL COMMUNICATIONS COMMISSION, a federal agency, Defendants.
C. DEVER III Chief United States District Judge
12,2016, the American Association of Political Consultants,
Inc., the Democratic Party of Oregon, Inc., Public Policy
Polling, LLC, the Tea Party Forward PAC, and the Washington
State Democratic Central Committee (collectively,
"plaintiffs") sued United States Attorney General
Loretta Lynch in her official capacity and the Federal
Communications Commission ("the FCC")
(collectively, "defendants") [D.E.
On July 15,2016, Loretta Lynch moved to dismiss
plaintiffs' complaint pursuant to Federal Rule of Civil
Procedure 12(b)( 1) for lack of subject-matter jurisdiction
August 5,2016, plaintiffs amended their complaint [D.E. 18].
Thus, defendants' motion to dismiss plaintiffs'
original complaint is denied as moot.
September 2,2016, defendants moved to dismiss plaintiffs'
amended complaint under Federal Rule of Civil Procedure
12(b)(1) for lack of subject-matter jurisdiction [D.E. 22]
and filed a memorandum in support [D.E. 23]. On September
23,2016, plaintiffs responded [D.E. 23]. On October 7,2016,
defendants replied [D.E. 25]. As explained below, the court
denies defendants' motion to dismiss.
amended complaint challenges the prohibition in 47 U;S.C.
§ 227(b)(1)(A)(iii) against certain automatically dialed
phone calls ("the autodialing ban") because the
prohibition is both a content-based restriction on protected
speech and unconstitutionally underinclusive. See Am. Compl.
[D.E. 18] ¶¶ 2,36-63. The autodialing ban prohibits
"mak[ing] 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... to any telephone number
assigned to a... cellular telephone service... unless such
call is made solely to collect a debt owed to or guaranteed
by the United States." 47 U.S.C. § 227(b)(1)(A),
(b)(1)(A)(iii). The FCC is empowered to "prescribe
regulations to implement" 47 U.S.C. § 227(b). See
Id. § 227(b)(2). In support of their argument
that the autodialing ban is unconstitutional, plaintiffs cite
exemptions from the ban, created by statute and FCC orders,
they claim are content-based. Am. Compl. ¶¶
22,28-35. The statutory exemptions include calls made for
emergency purposes, calls made with the express consent of
the called party, or calls made to collect a debt owed to or
guaranteed by the United States. See 47 U.S.C. §
227(b)(1)(A), (b)(1)(A)(iii). The FCC's regulatory
exemptions include uncharged calls from a wireless carrier to
its customer, uncharged package delivery notifications,
non-telemarketing communications where a third party has
represented to the sender that the recipient has consented to
the communications, emergency calls related to healthcare,
certain calls related to identity theft, and calls from
federal government officials conducting official business.
See Telephone Consumer Protection Act of 1991, 77
Fed. Reg. 34233, 34235 (June 11, 2012) (exempting wireless
carriers); In the Matter of Cargo Airline Assoc. Petition
for Expedited Declaratory Ruling. 29 FCC Red. 3432, 3439
(Mar. 27, 2014) (exempting package delivery notifications);
In the Matter of GroupMe. Inc/Skype Conmc'ns
S.A.R.L., 29 FCC Red. 3442,3444 (Mar. 27,2014) (exemption for
third-party representation of consent); In re Rules and
Regulations Implementing the Tel. Consumer Prot. Act, of
1991. 30 FCC Red. 7961, 8023-24, 8031 (July 10, 2015)
(exempting certain calls related to healthcare and identity
theft); In re Rules and Regulations Implementing the Tel.
Consumer Prot. Act of 1991. CG Docket No. 02-278 ¶
12 (July 5, 2016) (exempting calls made by federal officials
conducting official business).
move to dismiss plaintiff's amended complaint for lack of
subject-matter jurisdiction and make two arguments. First,
defendants argue that this case falls within the exclusive
jurisdiction of the federal court of appeals. Second,
defendants argue that plaintiffs lack standing because a
favorable decision in this court could not redress
47 U.S.C. § 402(a), "[a]ny proceeding to enjoin,
set aside, annul, or suspend any order of the [FCC] under
this chapter... shall be brought as provided by and in the
manner prescribed in chapter 158 of Title 28," subject
to some exceptions that do not apply in this case. Section
402(a) directs the court to 28 U.S.C. § 2342, which
states that "[t]he court of appeals (other than the
United States Court of Appeals for the Federal Circuit) has
exclusive jurisdiction to enjoin, set aside, suspend (in
whole or in part) or to determine the validity of... all
final orders of the Federal Communications Commission made
reviewable by" 47 U.S.C. § 402(a).
do not seek to enjoin, set aside, annul, or suspend any order
of the FCC. Rather, plaintiffs challenge the autodialing ban
in 42 U.S.C. § 277(b)(1)(A)(iii), which the FCC has
interpreted and to which the FCC has defined exceptions.
Although plaintiffs may argue at a later stage of this case
that the FCC's orders are evidence showing the
autodialing ban is content-based, they do not seek to show
that the FCC's orders delineating or interpreting
exceptions to the autodialing ban are void or invalid. Merely
referencing FCC orders does not make the present proceeding
one to enjoin, set aside, annul, or suspend those orders
within the meaning of 47 U.S.C. § 402(a). Moreover, the
FCC's orders carving out exemptions to the autodialing
ban would not be affected by the relief plaintiffs seek.
Plaintiffs seek to invalidate the autodialing ban in 42
U.S.C. § 277(b)(1)(A)(iii). The FCC's orders carve
out exemptions to the autodialing ban. If the plaintiffs
obtain the relief they seek in this action, the exemptions
set out in the FCC's orders will be rendered unnecessary,
but they will not be enjoined, set aside, annulled, or
suspended. Thus, the court rejects defendants' first
the question of redress ability, defendants argue that
plaintiffs' injuries are not redressable because even if
the court were to find that the autodialing ban is
unconstitutional, the court would have to sever the
exemptions from the ban, in which case plaintiffs would still
be prohibited from sending automatic messages to cellular
telephones. The United States Court of Appeals for the Fourth
Circuit, however, took the opposite approach in Cahaly v.
Larosa. 796 F.3d 399,402-06 (4th Cir. 2015). In
Cahaly. the Fourth Circuit considered a
constitutional challenge to South Carolina's
anti-robocall statute, which banned automated telephone calls
delivering prerecorded messages for consumer or political
purposes but also carved out three exceptions based on the
express or implied consent of the called party. Id.
at 402. The Fourth Circuit held that the robocall ban was a
content-based restriction that was unconstitutional because
it could not survive strict scrutiny. Id. at 405-06.
The Fourth Circuit did not sever the general ban from its
exceptions. Rather, the Fourth Circuit affirmed the district
court's order declaring the robocall statute
unconstitutional and barring its enforcement. Id. at
404-06. Here, the question of plaintiffs' success on the
merits and the appropriate relief is a question for another
day, but as a matter of standing, this court does not lack
the power to grant plaintiffs the relief they seek.
pursuant to Fed. R. Civ. P. 25(d), the court ORDERS that
Jefferson Sessions in his official capacity as Attorney
General of the United States, be substituted for Loretta
Lynch in her official capacity as Attorney General of the
United States. Defendants' motion to dismiss
plaintiffs' initial complaint for lack of subject-matter
jurisdiction [D.E. 15] is DENIED as moot. Defendants'
motion to dismiss plaintiffs' amended complaint for lack
of subject-matter jurisdiction [D.E. 22] is DENIED.
 On February 19,2017, Jefferson
Sessions assumed the position of Attorney General of the
United States. A public officer's "successor is
automatically substituted as a party." ...