In a Report and Recommendation denying a motion to dismiss violations of the Telephone Consumer Protection Act’s (TCPA) automatic telephone dialing system (ATDS) provision, a Florida federal court fueled the battle over the TCPA’s constitutionality by agreeing with other federal appellate panels who have held the statute’s government-debt-collection exception unconstitutional but found that the proper remedy is to sever that provision.

When hit with a putative class action filed by Henry Grigorian for sending unsolicited text messages to cellphones, Tixe Realty Services moved to dismiss the suit, arguing that the TCPA is unconstitutionally vague in violation of the First Amendment.

Following the path of the U.S. Court of Appeals, Fourth and Ninth Circuits, U.S. Magistrate Judge Bruce Reinhart agreed.

Both federal appellate panels held that the TCPA distinguishes between phone calls based on their content. Automated calls are generally prohibited under the statute but are permitted if the call is “solely to collect a debt owed to or guaranteed by the United States.”

This content-based restriction on speech—which neither federal appellate panel was persuaded to find was a regulation on the basis of relationship, as the government argued—did not survive strict scrutiny. The government’s stated intent to protect the “well-being, tranquility and privacy” of consumers may be a compelling state interest, but the law was not narrowly tailored to achieve that interest, the Fourth and Ninth Circuits held.

“The undersigned agrees with the reasoning of [the Fourth and Ninth Circuit] decisions and, for the reasons they discuss, finds that the TCPA is a valid content-neutral restriction that does not violate the First Amendment, or alternatively, that any First Amendment problem is remedied by severing the government-debt-collection provision,” Judge Reinhart wrote.

The court sided with the plaintiff on the remainder of the defendant’s arguments to dismiss, ruling that the record lacked support for an affirmative defense of consent, that the allegations the defendant used an ATDS were sufficient to move the claim forward, and that the putative class was not vague and overbroad.

To read the Report and Recommendation in Grigorian v. Tixe Realty Services, Inc., click here.

Why it matters: The fight over the constitutionality of the TCPA will continue, with challenges filed across the country, from California to Delaware to Florida. An answer may be forthcoming, however, as the Supreme Court, on January 10, 2020, accepted certiorari of a petition to review the TCPA’s constitutionality in the matter of William P. Barr et al. v. American Association of Political Consultants et al., Case No. 19-631.