Cahaly v. LaRosa

Citation25 F.Supp.3d 817
Decision Date10 June 2014
Docket NumberCivil Action No. 6:13–cv–00775–JMC.
CourtUnited States District Courts. 4th Circuit. United States District Court of South Carolina
PartiesRobert C. CAHALY, Plaintiff, v. Paul C. LAROSA, III, Reginald I. Lloyd, South Carolina Law Enforcement Division, Defendants.

25 F.Supp.3d 817

Robert C. CAHALY, Plaintiff
v.
Paul C. LAROSA, III, Reginald I. Lloyd, South Carolina Law Enforcement Division, Defendants.

Civil Action No. 6:13–cv–00775–JMC.

United States District Court, D. South Carolina, Greenville Division.

Signed June 10, 2014.


25 F.Supp.3d 819

Samuel Darryl Harms, III, Harms Law Firm, Greenville, SC, for Plaintiff.

Kenneth Paul Woodington, William Henry Davidson, II, Davidson Morrison and Lindemann, Columbia, SC, for Defendants.

ORDER AND OPINION

J. MICHELLE CHILDS, District Judge.

Plaintiff Robert C. Cahaly is a Republican political consultant who has engaged and seeks to continue to engage in political speech and political campaigns in the state of South Carolina. (ECF No. 1–2 at 8.) Plaintiff filed the instant action on October 31, 2012, in South Carolina state court claiming pursuant to 42 U.S.C. § 1983 that provisions of South Carolina state law enforced by Defendants Paul C. LaRosa, III, Reginald I. Lloyd, and South Carolina Law Enforcement Division (“SLED”) (collectively referred to as “Defendants”) violated his First Amendment right of free speech. (ECF No. 1–2.) Plaintiff requested declaratory relief as well as an

25 F.Supp.3d 820

injunction to enjoin Defendants from enforcing the relevant South Carolina Code sections. (Id. at 18–19.) Plaintiff also alleged state law claims of false imprisonment and malicious prosecution. (Id. at 19–21.)

Defendants filed a notice of removal on March 22, 2013. (ECF No. 1.) This matter is before the court on Plaintiff's Motion for Preliminary Injunction, or in the Alternative, for Partial Summary Judgment (ECF No. 14), Defendants' Motion for Summary Judgment (ECF No. 17), and Plaintiff's Motion to Expedite the Decision (ECF No. 25). For the reasons set forth below, the court GRANTS Plaintiff's motion for partial summary judgment and thereby DENIES AS MOOT Plaintiff's motion in the alternative for a preliminary injunction and Plaintiff's motion to expedite the court's decision. The court further GRANTS IN PART and DENIES IN PART Defendants' motion for summary judgment.

RELEVANT FACTUAL AND PROCEDURAL BACKGROUND

South Carolina Code § 16–17–446 (2003) which incorporates certain components of § 16–17–4451 (2003 & Supp.2013) is at the heart of the analysis of Plaintiff's constitutional claims. Therefore, the pertinent provisions are identified herein. Section 16–17–446, entitled “Regulation of automatically dialed announcing device (ADAD),” states as follows:

(A) Adad means an automatically dialed announcing device which delivers a recorded message without assistance by a live operator for the purpose of making an unsolicited consumer telephone call as defined in Section 16–17–445(A)(3).2 Adad calls include automatically announced calls of a political nature including, but not limited to, calls relating to political campaigns.
(B) Adad calls are prohibited except:

(1) in response to an express request of the person called;
(2) when primarily connected with an existing debt or contract, payment or performance of which has not been completed at the time of the call;
(3) in response to a person with whom the telephone solicitor has an existing business relationship or has had a previous business relationship.
(C) Adad calls which are not prohibited under subsection (B):
(1) are subject to Section 16–17–445(B)(1), (2), and (3);
(2) shall disconnect immediately when the called party hangs up;
(3) are prohibited after seven p.m. or before eight a.m.;
(4) may not ring at hospitals, police stations, fire departments, nursing homes, hotels, or vacation rental units.
(D) A person who violates this section, upon conviction, must be punished as provided in Section 16–17–445(F).
25 F.Supp.3d 821

S.C.Code Ann. § 16–17–446 (emphasis added). Section 16–17–445 is entitled “Regulation of unsolicited consumer telephone calls” and states, in relevant parts:

(A) As used in this section: ...
(4) “Unsolicited consumer telephone call” means a consumer telephone call other than a call made:
(a) in response to an express request of the person called;
(b) primarily in connection with an existing debt or contract, payment, or performance of which has not been completed at the time of the call; or
(c) to a person with whom the telephone solicitor has an existing business relationship or had a previous business relationship....
(B) A telephone solicitor who makes an unsolicited consumer telephone call must disclose promptly and in a clear conspicuous manner to the person receiving the call, the following information:
(1) the identity of the seller;
(2) that the purpose of the call is to sell goods or services;
(3) the nature of the goods or services; ...
(F) The department3 shall investigate any complaints received concerning violations of this section. If the department has reason to believe that there has been a violation of this section, it may request a contested case hearing before the Administrative Law Court to impose a civil penalty ... The department may also bring a civil action in the Court of Common Pleas seeking other relief, including injunctive relief, as the court considers appropriate against the telephone solicitor. In addition, a person who violates provisions of this section is guilty of a misdemeanor and, upon conviction for a first or second offense, must be fined not more than two hundred dollars or imprisoned for not more than thirty days.... Each violation constitutes a separate offense for purposes of the civil and criminal penalties in this section.

S.C.Code Ann. § 16–17–445 (emphasis added).

Collectively, §§ 16–17–446 and 16–17–445 have the impact of prohibiting consumer and politically-related unsolicited calls made by ADADs, also referred to as “robocalls,” with some exceptions. See S.C.Code Ann. §§ 16–17–446 and 16–17–445. Excepted from § 16–17–446's general ban on political and commercial robocalls are calls that are based on some form of consent by the person called or some existing relationship between the person called and the caller. See S.C.Code Ann. § 16–17–446(B). Even where a political or commercial robocall meets the exception criteria, the statute requires that the caller announce certain identifying information about the source of the call and the call's purpose. S.C.Code Ann. §§ 16–17–446(C), 16–17–445(B). Where a robocaller violates the provisions of the statute, he may be punished by civil penalty, injunctive relief, or criminal misdemeanor conviction. S.C.Code Ann. §§ 16–17–446(D), 16–17–445(F).

On September 17, 2010,4 at Plaintiff's request, a state representative sought an

25 F.Supp.3d 822

opinion from the state attorney general on the legality of certain political phone calls. (ECF No. 14–2 at 10.) Specifically, the state representative inquired whether under South Carolina law it was acceptable to make political calls to answering machines but not to live answers. (Id. ) The representative also asked whether it was legal for organizations such as Survey USA to conduct automated survey calls that require a recipient's response via phone key. (Id. )

The state attorney general responded in an official opinion on September 22, 2010. (ECF No. 14–2 at 11–12; S.C. Att'y. Gen. Op. dated Sept. 22, 2010 (2010 WL 3896174 ).) In that opinion, the state attorney general stated his belief that it was legal for a person to make political phone calls with a recorded telephone message delivered to an answering machine and not a live person. (ECF No. 14–2 at 11–12; S.C. Att'y. Gen. Op. dated Sept. 22, 2010 (2010 WL 3896174 ).) The state attorney general further opined that the purpose of § 16–17–446 was to “prohibit the unwarranted invasion by automated dialing devices in order to promote the advocacy of a ‘product’ including a particular candidate.” (ECF No. 14–2 at 11–12; S.C. Att'y. Gen. Op. dated Sept. 22, 2010 (2010 WL 3896174 ).) As such, the state attorney general concluded that organizations such as Survey USA were allowed to conduct political ADADs that require the recipient's responses via phone key. (ECF No. 14–2 at 11–12; S.C. Att'y. Gen. Op. dated Sept. 22, 2010 (2010 WL 3896174 ).) However, the state attorney general cautioned that those political ADADs could not advocate for a particular political candidate but could instead obtain a simple snapshot opinion of a voter. (ECF No. 14–2 at 11–12; S.C. Att'y. Gen. Op. dated Sept. 22, 2010 (2010 WL 3896174 ).) Thus, the state attorney general interpreted §...

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  • Cahaly v. Larosa
    • United States
    • United States District Courts. 4th Circuit. United States District Court of South Carolina
    • 10 Junio 2014
    ...25 F.Supp.3d 817Robert C. CAHALY, Plaintiff,v.Paul C. LAROSA, III, Reginald I. Lloyd, South Carolina Law Enforcement Division, Defendants.Civil Action No. 6:13–cv–00775–JMC.United States District Court, D. South Carolina, Greenville Division.Signed June 10, Motions granted in part and denie......

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