Bland v. Fessler
1996 WL 363612, 88 F.3d 729 (1996)
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Rule of Law:
A state law requiring a live operator to obtain consent from a called party before playing a prerecorded message is a constitutional time, place, and manner restriction on speech. Such a regulation is content-neutral and narrowly tailored to serve the significant government interest in protecting residential and workplace privacy from intrusive and disruptive automated calls.
Facts:
- William Bland used Automatic Dialing and Announcing Devices (ADADs) to advertise his carpet cleaning services.
- Bland's use of ADADs resulted in consumer complaints to the telephone company.
- One consumer reported that Bland's ADAD calls tied up their phone line for several minutes, even after they hung up.
- Another consumer complained that the ADADs were misleading as to the identity of the calling party.
- In May 1994, the telephone company notified Bland that his ADAD use violated California law.
- The telephone company threatened to disconnect Bland's telephone service if he continued to use the ADADs.
- Following the threat, Bland immediately ceased using his ADADs for advertising.
Procedural Posture:
- In October 1994, William Bland and the National Association of Telecomputer Operators sued the California Public Utilities Commissioners and the California Attorney General in federal district court.
- The lawsuit alleged that two California statutes regulating ADADs violated the First and Fourteenth Amendments.
- In March 1995, the district court granted the Commissioners' motion for summary judgment, upholding the utilities statute.
- The district court also granted the Attorney General's Rule 12(b)(6) motion to dismiss the challenge to the civil statute.
- The plaintiffs, Bland and NATO, appealed the district court's decisions to the U.S. Court of Appeals for the Ninth Circuit.
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Issue:
Do California statutes that prohibit the use of Automatic Dialing and Announcing Devices (ADADs) unless a live operator first obtains the called party's consent to listen to the prerecorded message violate the First Amendment's guarantee of free speech?
Opinions:
Majority - Fletcher, Circuit Judge
No, the California statutes do not violate the First Amendment because they are permissible time, place, and manner restrictions on speech. The court applied a four-part test, finding the statutes are content-neutral, as they regulate the method of communication, not the message. The government has a significant interest in protecting both residential and workplace privacy from the unique annoyance and disruption of ADADs, which can tie up phone lines, fill answering machines, and turn listeners into a captive audience. The statutes are narrowly tailored to serve this interest by allowing recipients to consent to or reject messages, a more effective and less burdensome approach than alternatives like 'do not call' lists. Finally, ample alternative channels of communication remain available, such as live telemarketing, mail, and even ADADs preceded by a live operator.
Analysis:
This decision solidifies the legal principle that automated telemarketing calls receive less First Amendment protection due to their uniquely intrusive nature. By upholding the California statutes as valid time, place, and manner restrictions, the court affirmed that the government's interest in protecting privacy in both homes and businesses is significant enough to justify requiring consent before playing a recorded message. This case provides a strong precedent for other state and federal regulations on ADADs, distinguishing automated calls from other forms of solicitation and making it more difficult to challenge such laws on First Amendment grounds.
