Steve Gallion v. United States of America

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
STEVE GALLION,
Plaintiff-Appellee,
v.
UNITED STATES OF AMERICA,
Intervenor-Appellee,
v.
CHARTER COMMUNICATIONS, INC.;
SPECTRUM MANAGEMENT HOLDING
COMPANY, LLC,
Defendants-Appellants.
No. 18-55667
D.C. No.
5:17-cv-01361-CAS-KK
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
Christina A. Snyder, District Judge, Presiding
Argued and Submitted March 11, 2019
San Francisco, California
Before: WALLACE, SILER,** and McKEOWN, Circuit Judges.
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The Honorable Eugene E. Siler, United States Circuit Judge for the
U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
FILED
JUL 8 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Charter Communications, Inc., and Spectrum Management Holding
Company, LLC, (hereinafter “Charter”) appeal the district court’s denial of their
Federal Rule of Civil Procedure 12(c) motion for judgment on the pleadings, which
raises a First Amendment challenge to the Telephone Consumer Protection Act
(“TCPA”) in Steve Gallion’s putative class action alleging TCPA violations. The
district court held that the TCPA is constitutional, denied Charter’s Rule 12(c)
motion, and granted Charter’s motion for interlocutory review. The parties are
familiar with the facts, and we do not recite them here. We have jurisdiction under
28 U.S.C. § 1292(b), and we affirm.
On interlocutory appeal, we review de novo the district court’s denial of a
motion for judgment on the pleadings. Metrophones Telecomms., Inc. v. Global
Crossings Telecomms., Inc., 423 F.3d 1056, 1063 (9th Cir. 2005), aff’d, 550 U.S.
45 (2007). We review de novo the constitutionality of the TCPA. Moser v. FCC,
46 F.3d 970, 973 (9th Cir. 1995). Charter has standing to challenge the TCPA’s
government-debt exception provision as underinclusive. Maldonado v. Morales,
556 F.3d 1037, 1044 (9th Cir. 2009).
Consistent with Duguid v. Facebook, Inc., No. 17-15320, 2019 WL 2454853
(9th Cir. June 13, 2019), we hold that the 2015 amendment to the TCPA, which
excepts calls “made solely to collect a debt owed to or guaranteed by the United
States,” is a content-based speech regulation that fails strict scrutiny, and thus is

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incompatible with the First Amendment. However, in Duguid, we severed the
“debt-collection exception” and left intact the remainder of the statute. In light of
Duguid, we affirm the district court’s denial of Charter’s Rule 12(c) motion for
judgment on the pleadings, albeit on different grounds.
Charter’s arguments that other provisions of the TCPA (the delegation to the
Federal Communications Commission (“FCC”) and the claimed government
speakers’ preference) are unconstitutional also fail. These provisions were part of
the pre-2015 TCPA challenged and upheld as constitutional in Moser, 46 F.3d at
973, 975, and Gomez v. Campbell-Ewald Co., 768 F.3d 871, 876–77 (9th Cir.
2014), aff’d on other grounds, 136 S. Ct. 663, 672 (2016). Because we conclude in
Duguid that the unconstitutional debt-collection exception is severable, the TCPA
is restored to its pre-2015 status and is constitutional under our precedents.
Duguid, 2019 WL 2454853 at *8 (“Excising the debt-collection exception
preserves the fundamental purpose of the TCPA and leaves us with the same
content-neutral TCPA that we upheld—in a manner consistent with Reed—in
Moser and Gomez.”).
Charter also challenges several FCC orders promulgating exceptions to the
TCPA. But the FCC’s regulatory exceptions are not before this court. The proper
venue to challenge an FCC order is directly in a court of appeals, not in the district
court. 28 U.S.C. § 2342(1); 47 U.S.C. § 402(a); see Moser, 46 F.3d at 973.

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We do not reach Charter’s argument that severing the unconstitutional
portion of the TCPA raises retroactivity concerns because Charter raised this
argument for the first time in its Reply Brief and later in a Rule 28(j) letter. Smith
v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999) (“[O]n appeal, arguments not raised
by a party in its opening brief are deemed waived.”).
AFFIRMED.

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