Oklahoma ex rel. Edmondson v. Pope

• Decision Date: 09 January 2007
• Docket Number: No. CIV-06-487-C.,CIV-06-487-C.
• Parties: State of OKLAHOMA, ex rel., W.A. Drew EDMONDSON, Attorney General of Oklahoma, Plaintiff, v. Tim POPE, Defendant.
• Court: U.S. District Court — Western District of Oklahoma

505 F.Supp.2d 1098

State of OKLAHOMA, ex rel., W.A. Drew EDMONDSON, Attorney General of Oklahoma, Plaintiff, v. Tim POPE, Defendant.

No. CIV-06-487-C.

United States District Court, W.D. Oklahoma.

January 9, 2007.

Julie A. Bays, Thomas A. Bates, Attorney General's Office-Lincoln, General Counsel-Litigation Division, Oklahoma City, OK, for Plaintiff.

Stephen L. Jones, Jones Otjen Davis & Gungoll, Enid, OK, for Defendant.

MEMORANDUM OPINION & ORDER

CAUTHRON, District Judge.

This is an enforcement action for alleged violations of the Telephone Consumer Protection Act ("TCPA"), 47 U.S.C.A. § 227. See 47 U.S.C. § 227(f)(1). In January 2006, Defendant retained a telecommunications company to call the homes of thousands of Oklahomans and play a prerecorded message about Oklahoma County Commissioner Jim Roth when the calls were answered. Those messages did not identify Defendant or provide his telephone number or address. The critical issues in this case are: (1) whether the TCPA's technical standards (requiring identification and contact information in calls to residences containing prerecorded messages) apply to messages of a political or non-commercial nature; and (2) if so, whether application of those requirements infringes on Defendant's First Amendment rights. (See Dkt. No. 10, Status Report, at 3.)

Plaintiff has moved for summary judgment on those questions and asks that a hearing be set to determine the appropriate penalty under § 227(f)(1). Response and reply briefs have been filed. In the caption of his response brief, Defendant requests oral argument. The Court finds that the written submissions are more than sufficient and that argument on the legal questions raised therein is unnecessary. Therefore, Defendant's request is denied.

STANDARD OF REVIEW

Summary judgment is proper only if the moving party shows "there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). "An issue of fact is `material' if under the substantive law it is essential to the proper disposition of the claim." Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir.1998). "An issue is `genuine' if there is sufficient evidence on each side so that a rational trier of fact could resolve the issue either way." Id. At the summary judgment stage, the Court's function is not to weigh the evidence but to determine whether there is a genuine issue for trial. Willis v. Midland Risk Ins. Co., 42 F.3d 607, 611 (10th Cir.1994). Thus, the Court views the evidence in the light most favorable to the nonmoving party and draws all reasonable inferences in that party's favor. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Simms v. Oklahoma ex rel. Dep't of Mental Health, 165 F.3d 1321, 1326 (10th Cir.1999); McWilliams v. Jefferson County, 463 F.3d 1113, 1116 (10th Cir.2006) ("In determining whether any genuine issue as to any material fact exists, evidence is to be liberally construed in favor of the party opposing the motion for summary judgment.").

FACTS

The facts of this case are not disputed at summary judgment. As indicated above, Defendant, a self-employed political consultant, retained Guardian Communications, Inc., to call and deliver the following prerecorded message to Oklahoma County residents:

Stand by for an important message. Hear County Commissioner Jim Roth speak of his success in advancing the homosexual agenda in Oklahoma County. Including homosexual language into the county personnel handbook and fighting to keep homosexual books in the children's section of the library. Commissioner Jim Roth will discuss his role in advancing the homosexual political agenda on Monday, January 30th at 6:30 p.m. at Epworth United Methodist Church. Stand by for a one question survey. If you think that Commissioner Roth should continue using his position to advance the homosexual agenda press one, if you do not, press two. Thank you.

(Dkt. No. 10, Status Report, at 2.) Quite clearly, the message did not state the identity of the individual, business, or entity responsible for initiating the calls or its telephone number.

At least nine residents of Oklahoma County received a call at their homes containing this message. Those calls were received on the afternoon of January 29, 2006. Plaintiff has attached affidavits from those individuals, who also registered complaints with the Attorney General's Office after receiving the calls.

In accordance with 47 U.S.C.A. § 227(f)(3), Plaintiff provided notice of this action to the Federal Communications Commission ("FCC") on May 3, 2006.

DISCUSSION

The parties' briefs address the applicability of the TCPA technical requirements to residential calls containing prerecorded, non-commercial messages and First Amendment issues. Defendant also raises a selective enforcement defense. These arguments are addressed below.

A. TCPA Requirements for Prerecorded Messages in Residential Calls

The first issue is whether a telephone call to a residential phone line that delivers a non-commercial message using an artificial or prerecorded voice must satisfy the technical standards imposed by federal statute and proscribed by the FCC. The Court concludes that it does, but must begin its discussion with the general statutory proscription against calls to residences containing a prerecorded message.

The TCPA prohibits the initiation of "any telephone call to any residential telephone line using an artificial or prerecorded voice to deliver a message without the prior express consent of the called party, unless the call is initiated for emergency purposes or is exempted by rule or order by the Commission under paragraph (2)(B)."¹ 47 U.S.C.A. § 227(b)(1)(B). Emergency purposes pertains to "calls made necessary in any situation affecting the health and safety of consumers." 47 C.F.R. § 64.1200(f)(3). Paragraph (2)(B) of § 227(b) provides that the Commission "may, by rule or order, exempt from the requirements of paragraph (1)(B) ..., calls that are not made for a commercial purpose" and calls made for a commercial purpose that "will not adversely affect the privacy rights that this section is intended to protect... and ... do not include the transmission of any unsolicited advertisement." Pursuant to this authority, the FCC has exempted residential calls using an artificial or prerecorded voice message that are not made for a commercial purpose. 47 C.F.R. § 64.1200(a)(2)(ii).

In this case, the record shows that the calls containing a prerecorded message were made without prior consent in at least nine instances and, thus, in contravention of § 227(b)(1)(B). Because these individuals complained about the calls, the Court construes their affidavits as evidence that none had previously consented to receiving the calls. Similarly, the calls were not exempt from the statutory prohibition as being made for an emergency purpose. There is simply no suggestion or support in the record that Commissioner Roth's prior actions or upcoming appearance affected the health and safety of these telephone subscribers.

Nevertheless, the calls known to have been received clearly fall within the noncommercial purpose exemption identified above. Although commercial purpose is not specifically defined, the Supreme Court's description of commercial speech as an "expression related solely to the economic interest of the speaker and its audience," Central Hudson Gas & Electric Corporation v. Public Service Commission of New York, 447 U.S. 557, 561, 100 S.Ct. 2343, 65 L.Ed.2d 341 (1980), provides ample context in this case, where there is no debate about the nature of the calls. They contained prerecorded messages about County Commissioner Jim Roth's alleged support of a homosexual agenda. The parties agree, and it seems apparent, that the calls were politically motivated and not made for any commercial or economic purpose. Thus, under § 227(b)(2)(B) and 47 C.F.R. § 68.1200(a)(2)(ii), those calls, though directed to private residences and containing a prerecorded message, were not unlawful by virtue of the recipients not having given prior consent.

However, that the calls were not themselves unlawful does not directly answer the principal question in this case. The issue is not whether Defendant could legally initiate or have those calls made, but rather, when he did, whether he was required to comply with the technical requirements applicable to all artificial or prerecorded telephone messages. Based on the clear statutory and regulatory language, and as further supported by the legislative history underlying the TCPA, the Court holds that he was.

By statute, the FCC is required to:

prescribe technical and procedural standards for systems that are used to transmit any artificial or prerecorded voice message via telephone. Such standards shall require that —

(A) all artificial or prerecorded telephone messages (i) shall, at the beginning of the message, state clearly the identity of the business, individual, or other entity initiating the call, and (ii) shall, during or after the message, state clearly the telephone number or address of such business, other entity, or individual; and

(B) any such system will automatically release the called party's line within 5 seconds of the time notification is transmitted to the system that the called party has hung up, to allow the called party's line to be used to make or receive other calls.

47 U.S.C.A. § 227(d)(3). The FCC adopted the statutorily-mandated requirements in 47 C.F.R. § 64.1200(b).²

Defendant makes several arguments that non-commercial calls containing prerecorded messages are not subject to those requirements. First, he argues that the technical requirements do not apply because the exemption for calls made for non-commercial purposes is an exemption for purposes of all TCPA requirements and not simply the consent requirement in 47 U.S.C.A. § 227...