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New York law prohibiting paper billing statement fees is an unconstitutional restriction of commercial speech
On March 16, the U.S. District Court for the Northern District of New York dismissed a putative class action with prejudice over whether a national bank violated state law by charging a fee for paper billing statements in certain circumstances. The consumer’s suit alleged violations of N.Y. Gen. Bus. Law § 399-zzz as well as N.Y. Gen. Bus. Law § 349, which prohibits deceptive acts and practices. The bank argued, among other things, that (i) the consumer’s § 399-zzz claim was preempted by the National Bank Act (NBA); (ii) the consumer’s interpretation of § 399-zzz “would prevent [the bank] from exercising its federally authorized power to charge non-interest fees”; (iii) § 399-zzz is unconstitutional under the First Amendment because it limits the bank’s communication of fees and pricing to consumers; (iv) the statute does not apply to national banking institutions like the defendant; and (v) the statute does not prohibit the conduct at issue. The court disagreed, ruling that § 399-zzz is not preempted by the NBA because paper statement fees are not limited to only banking institutions. Moreover the court determined that the state statute is a rule of general application and “does not prevent or significantly interfere with [the bank’s] exercise of its powers.” However, the court ultimately dismissed the consumer’s action, agreeing that § 399-zzz constitutes an unconstitutional restriction on the bank’s First Amendment right of commercial speech under intermediate scrutiny. According to the court, § 399-zzz regulates “how businesses can communicate their fees” by “prohibit[ing] businesses from charging consumers for receiving a paper statement” but permits businesses “to offer consumers a credit for receiving an electronic statement instead of a paper statement.” The court also ruled that the consumer failed to state a claim for a deceptive act or practice because §399-zzz unconstitutionally infringes on the bank’s First Amendment rights.
On July 6, the U.S. Supreme Court held in Barr v. American Association of Political Consultants Inc. that the TCPA’s government-debt exception is an unconstitutional content-based speech restriction and severed the provision from the remainder of the statute. As previously covered by InfoBytes, several political consultant groups (plaintiffs) argued that the TCPA’s statutory exemption enacted by Congress as a means of allowing automated calls to be placed to individuals’ cell phones “that relate to the collection of debts owed to or guaranteed by the federal government” is “facially unconstitutional under the Free Speech Clause” of the First Amendment. The plaintiffs argued that the debt-collection exemption to the automated call ban contravenes their free speech rights. Moreover, the plaintiffs claimed that “the free speech infirmity of the debt-collection exemption is not severable from the automated call ban and renders the entire ban unconstitutional.” The FCC, however, argued that the applicability of the exemption depended on the relationship between the government and the debtor and not on the content. The district court awarded summary judgment in favor of the FCC, which the U.S. Court of Appeals for the Fourth Circuit vacated, concluding the exemption violated the First Amendment’s Free Speech Clause.
In a plurality opinion, the Supreme Court agreed with the 4th Circuit. The Court noted that “a law is content-based if ‘a regulation of speech ‘on its face’ draws distinctions based on the message a speaker conveys’”; and a law that allows for robocalls asking for payment of government debt but does not allow robocalls for political donations, “is about as content-based as it gets.” The Court agreed with the government that the content-based restriction failed to satisfy strict scrutiny, as the government could not sufficiently justify the difference “between government-debt collection speech and other categories of robocall speech.” As for remedy, the Court applied “traditional severability principles,” with seven Justices concluding that the entire TCPA should not be invalidated but that the government-debt exception should be severed from the statute. The Court noted that its cases have “developed a strong presumption of severability,” and its “power and preference to partially invalidate a statute in that fashion has been firmly established since Marbury v. Madison.” Moreover, because the government-debt exception is “relatively narrow exception” to the TCPA’s broad robocall restriction, the Court concluded that severing the exception would “not raise any other constitutional problems.”
On March 25, the U.S. District Court for the Southern District of Florida granted in part and denied in a part a motion to dismiss a putative class action alleging that an auto dealer violated the TCPA by using a “ringless” voicemail platform to leave pre-recorded telemarketing voicemails on consumers’ cell phones without obtaining prior express consent. The defendant moved to dismiss the putative class claims arguing that (i) the plaintiff lacked standing and failed to state a claim because he did not receive a “call” within the meaning of the TCPA; (ii) the plaintiff lacked standing to seek declaratory or injunctive relief; (iii) the TCPA was unconstitutional; and (iv) the complaint failed to adequately allege that the defendant “willfully or knowingly violated the TCPA.”
The court rejected the defendant’s argument that the plaintiff did not receive a “call” as defined by the TCPA, concluding that a ringless voicemail is a call subject to the TCPA restrictions. The court found that the plaintiff had Article III standing because he sufficiently alleged an injury-in-fact and actual harm, including, among other things, invasion of privacy, aggravation, annoyance, and intrusion. The court further found that the plaintiff’s complaint alleged sufficient facts to support the TCPA claim and the allegation that defendant acted willfully or knowingly. The court also rejected defendant’s challenge to the TCPA’s constitutionality. However, the court found the plaintiff could not seek declaratory or injunctive relief because the plaintiff failed to show real and immediate threat of future harm or proffer a basis that would allow the court to infer that the defendant would ever send ringless voicemails again.
On March 13, the U.S. Court of Appeals for the 9th Circuit affirmed dismissal of two online short-term rental companies’ (plaintiffs) action challenging the City of Santa Monica’s Ordinance 2535. According to the opinion, Ordinance 2535, which was amended in 2017, imposed four obligations on online platforms hosting rentals: (i) collecting and remitting Transient Occupancy Taxes; (ii) regularly disclosing listings and booking information to Santa Monica; (iii) only booking properties licensed and listed on Santa Monica’s registry; and (iv) refraining from collecting a fee for “ancillary services.” The plaintiffs challenged the Ordinance, arguing that it was preempted by the Communications Decency Act of 1996 (CDA) and it violated the First Amendment by restricting commercial speech, because it required the plaintiffs to monitor and remove third-party content. The lower court dismissed the action concluding the plaintiffs failed to state a claim under the CDA and the First Amendment.
On appeal, the 9th Circuit upheld the lower court’s ruling. The appellate court determined that Ordinance 2535 was not expressly preempted by its terms, nor would it “pose an obstacle to Congress’s aim to encourage self-monitoring of third-party content” under the CDA because it only required the plaintiffs to monitor incoming requests to complete a booking transaction, which is content that is “distinct, internal, and nonpublic.” As for the First Amendment claim, the appellate court concluded that the effect of Ordinance 2535 on its face is to regulate booking transactions, which is “nonexpressive conduct,” rejecting the plaintiffs’ claims that it required them to monitor screen advertisements. Moreover, the appellate court noted that the Ordinance does not target websites that advertise the very same properties but do not process transactions, which underscores the proposition that the Ordinance is only targeting companies that “engage in unlawful booking transactions.”
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