Motion to certify to appeals court denied in class action alleging Telephone Consumer Protection Act violations

By Elizabeth Alt | Jun 13, 2018

FORT MYERS – The U.S. District Court for the Middle District of Florida, Fort Myers Division, recently denied a motion by Bright House Networks LLC and Advanced Telesolutions Inc. (ATI) to certify to the 11th U.S. Circuit Court of Appeals issues of whether the Government-Debt Exception fails strict scrutiny and cannot be severed in a suit alleging Telephone Consumer Protection Act (TCPA) violations for auto-dialed collection calls.

FORT MYERS – The U.S. District Court for the Middle District of Florida, Fort Myers Division, recently denied a motion by Bright House Networks LLC and Advanced Telesolutions Inc. (ATI) to certify to the 11th U.S. Circuit Court of Appeals issues of whether the Government-Debt Exception fails strict scrutiny and cannot be severed in a suit alleging Telephone Consumer Protection Act (TCPA) violations for auto-dialed collection calls.

U.S. District Judge John E. Steele wrote the May 21 order for the court, stating that Bright House failed to meet two of the three requirements, that there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation.

Stephen Sliwa filed an amended class action suit against Bright House and ATI claiming violations of the TCPA, Florida Consumer Collection Practices Act and the Fair Debt Collection Practices Act. In the court filing, Sliwa alleges that in an attempt to collect a debt he owed to Bright House, Bright House called his cellphone “hundreds of times using an automatic telephone dialing system or pre-recorded or artificial voice technology, even after he instructed them to stop.”

Bright House filed a motion for judgment, claiming that TCPA Section 227, which prohibits auto-dialed texts or calls to cellphones without consent, violates the First Amendment. The court denied the motion without addressing the First Amendment issue, finding that even if Section 227 violates the First Amendment, the Government-Debt Exception “would be severable, and the remainder of the provision would still expose Bright House to liability under the facts alleged in the amended cComplaint.”

Bright House argues that there are several California district judges that certified the question for interlocutory review, showing “substantial grounds for difference of opinion regarding its severability,” the court said. Bright House also argues that “immediate appeal would advance the ultimate termination of the litigation.”

Judge Steele noted that the court would only address the issue of severability “because the court did not address that issue in its opinion and order, whether the Government-Debt Exception violates the First Amendment is not an issue fairly included within the order Bright House seeks to certify for appeal.”

Steele's order said, “The Court continues to find there are no substantial grounds for a difference of opinion regarding severability of the Government-Debt Exception if it does indeed violate the First Amendment,” noting that Bright House failed to correctly cite any difference of opinion.

The court order also said, “There is specific evidence of Congress’ intent to sever the Government-Debt Exception from Section 27(b)(1)(A)(iii).” 

Steele rejected Bright House’s argument that an appeal would advance the litigation, stating that if the court were to find that the Government-Debt Exception was not severable, “the likely result in that scenario would be an increase in the length of the litigation, because the court would then have to consider the constitutionality of Section 227(b)(1)(A)(iii) on remand.”

The motion by Bright House and ATI for certification to the appeals court was denied for failure to meet two of the three requirements of U.S. Code Section 1292(b).

U.S. District Court for the Middle District of Florida, Fort Myers Division, Case Number 2:16-cv-00235-JES-MRM

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