Mejia v. Time Warner Cable Inc.

Filing 172

OPINION AND ORDER: re: (79 in 1:15-cv-06518-JPO) MOTION for Certificate of Appealability under 28 U.S.C. sec. 1292(b) and to Stay filed by Time Warner Cable, Inc. For the foregoing reasons, Time Warner's motion for an order certifying its Opinio n and Order for interlocutory review is DENIED. Time Warner's motion for an order staying the Mejia and Johnson actions pending the D.C. Circuit's resolution of ACA International v. FCC, No. 15-1211 (D.C. Cir.) is GRANTED. The Clerk of Cour t is directed to close the motion at Docket Number 155 in 15-CV-6645 and the motion at Docket Number 79 in 15-CV-6518. Time Warner shall promptly notify this Court in writing, via ECF, of the D.C. Circuit's decision in ACA International. Within 21 days of such notice, the parties are directed to file a letter with the Court proposing a timeline for further proceedings. Time Warner may renew its motion for an order staying the Johnson action at that time. SO ORDERED. (Signed by Judge J. Paul Oetken on 11/17/2017) (ama)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
RAQUEL S. MEJIA, LEONA HUNTER,
and ANNE MARIE VILLA, on behalf of
themselves and all others similarly
situated,
Plaintiffs,

15-CV-6445 (JPO)

-vTIME WARNER CABLE INC.,
Defendant.
ALLAN JOHNSON,

Plaintiff,

15-CV-6518 (JPO)

-v-

OPINION AND ORDER

TIME WARNER CABLE INC.,
Defendant.

J. PAUL OETKEN, District Judge:
Time Warner Cable, Inc. (“Time Warner”) is the sole defendant in two actions, separately
filed by Raquel Mejia (No. 15 Civ. 6445, the “Mejia action”) 1 and Allan Johnson (No. 15 Civ.
6518, the “Johnson action”), alleging a violation of the Telephone Consumer Protection Act of
1991, 47 U.S.C. § 227 (“TCPA”). Raising a First Amendment challenge to the TCPA, Time
Warner previously moved for judgment on the pleadings in both cases. This Court denied those
motions. See Mejia v. Time Warner Cable Inc., No. 15 Civ. 6445, 2017 WL 3278926 (S.D.N.Y.
Aug. 1, 2017).

1

An amended complaint removed Mejia and added as Plaintiffs Leona Hunter and
Anne Marie Villa. (Dkt. No. 45.)
1

Time Warner now moves for an order certifying for interlocutory review this Court’s
order and a stay of both actions. (Mejia Dkt. No. 155; Johnson Dkt. No. 79.) For the reasons
that follow, the Court denies certification of an interlocutory appeal but grants a stay.
I.

Background
Familiarity with the facts of these cases, as set out in this Court’s prior opinion, is

presumed. See Mejia, 2017 WL 3278926, at *1‒4. The Court briefly recounts the background
information necessary to resolve the instant motions.
The TCPA restricts various privacy-invading practices related to telephone technology.
In particular, the statute prohibits individuals from making calls
using any automatic telephone dialing system or an artificial
or prerecorded voice . . . to any telephone number assigned to
a . . . cellular telephone service . . . , unless such call is made
solely to collect a debt owed to or guaranteed by the United
States.
47 U.S.C. § 227(b)(1)(A)(iii). The TCPA defines “automatic telephone dialing system”
(“ATDS”) as “equipment which has the capacity—(A) to store or produce telephone numbers to
be called, using a random or sequential number generator; and (B) to dial such numbers.” Id.
§ 227(a)(1).
Both suits allege that Time Warner violated the TCPA by making unsolicited calls to
consumers’ telephones with an ATDS and/or a prerecorded voice. (See Mejia Dkt. No 15 at 2,
12‒13; Johnson Dkt. No. 7 at 1, 3.)
In October 2016, Time Warner moved for judgment on the pleadings, challenging the
constitutionality of the TCPA on First Amendment grounds. (Mejia Dkt. No. 82; Johnson Dkt.
No. 52.) Time Warner argued that the TCPA’s exception for “call[s] . . . made solely to collect a
debt owed to or guaranteed by the United States,” 47 U.S.C. § 227(b)(1)(A)(iii) (the
“government-debt exception”), creates a content-based restriction that fails strict scrutiny. In its
2

Opinion and Order dated August 1, 2017, this Court agreed that § 227(b)(1)(A)(iii) is contentbased but concluded that the statute survives strict scrutiny. See Mejia, 2017 WL 3278926, at
*14‒17.
Time Warner now moves for an order certifying for interlocutory review this Court’s
Opinion and Order, and, should the Court grant certification, an order staying both actions
pending the Second Circuit’s review. (Mejia Dkt. No. 155; Johnson Dkt. No. 79.) Time Warner
also requests an order staying both actions pending the D.C. Circuit’s resolution of its own
TCPA case, ACA International v. FCC, No. 15-1211 (D.C. Cir.). (Id.) In the alternative, Time
Warner moves for an order staying the Johnson action in favor of the Mejia action. (Id.)
II.

Motion for a Certificate of Appealability
A.

Legal Standard

Under 28 U.S.C. § 1292(b), a district court may certify an order for interlocutory appeal
if three conditions are met: (1) “such order involves a controlling question of law,” (2) “there is
substantial ground for difference of opinion” on that question of law, and (3) “an immediate
appeal from the order may materially advance the ultimate termination of the litigation.” 28
U.S.C. § 1292(b).
“The proponents of an interlocutory appeal have the burden of showing that all three of
the substantive criteria [of § 1292(b)] are met.” In re Facebook, Inc., IPO Sec. & Derivative
Litig., 986 F. Supp. 2d 524, 529 (S.D.N.Y. 2014). And “even when the elements of section
1292(b) are satisfied, the district court retains ‘unfettered discretion’ to deny certification.”
Garber v. Office of the Com’r of Baseball, 120 F. Supp. 3d 334, 337 (S.D.N.Y. 2014) (quoting
National Asbestos Workers Med. Fund v. Philip Morris, Inc., 71 F. Supp. 2d 139, 162–63
(E.D.N.Y. 1999)).

3

Despite the availability of certification under § 1292(b), “[i]t is a basic tenet of federal
law to delay appellate review until a final judgment has been entered.” Koehler v. Bank of
Bermuda Ltd., 101 F.3d 863, 865 (2d Cir. 1996). As a result, the Second Circuit has cautioned
district courts to grant interlocutory certification sparingly. See, e.g., id. (“[Interlocutory appeal]
is a rare exception to the final judgment rule that generally prohibits piecemeal appeals.”).
“Certification . . . is limited to ‘extraordinary cases where appellate review might avoid
protracted and expensive litigation,’ and is not intended as a vehicle to provide early review of
difficult rulings in hard cases.” In re Levine, No. 94 Civ. 44257, 2004 WL 764709, at *2
(S.D.N.Y. Apr. 9, 2004) (citations omitted) (quoting German v. Federal Home Loan Mortgage
Corp., 896 F. Supp. 1385, 1398 (S.D.N.Y. 1995)).
B.

Discussion
1.

Time Warner’s First Amendment Arguments

Time Warner’s motions for judgment on the pleadings raised three First Amendment
challenges to the TCPA. Time Warner argued that the TCPA triggers strict scrutiny because: (1)
the government-debt exception is a content-based distinction, (2) the government-debt exception
is a speaker-based distinction, and (3) the statute’s delegation of exception-creating authority to
the FCC makes the TCPA content-based. See Mejia, 2017 WL 3278926, at *14‒15. (See also
Mejia Dkt. No. 156 at 4‒8; Johnson Dkt. No. 80 at 4‒8.)
The Court’s Opinion and Order rejected the second and third arguments, concluding that
neither the TCPA’s exception for government speakers nor its FCC authorization triggers strict
scrutiny. See Mejia, 2017 WL 3278926, at *15.
In contrast, the Court agreed that the government-debt exception creates a content-based
distinction necessitating strict scrutiny, but the Court concluded that § 227(b)(1)(A)(iii) survives
strict scrutiny. See Mejia, 2017 WL 3278926, at *15. The Court will not rehash its Opinion and
4

Order, which substantively explained the Court’s conclusions: (1) that the TCPA serves the
compelling interest of “protect[ing] the privacy interests of residential telephone subscribers,” id.
at *16 (quoting S. Rep. No. 102-178, at 1 (1991)), and (2) that the “narrow [government-debt]
exception, and the provision as a whole,” are narrowly tailored “to further the interests that
Congress sought to pursue with the TCPA,” id. at *17.
2.

Section 1292(b) Factors

Time Warner satisfies the first and third § 1292(b) requirements. Time Warner
convincingly argues that all three of its First Amendment arguments present “a controlling
question of law” that, if resolved differently by the Court of Appeals, would “materially advance
the ultimate termination of the litigation.” 28 U.S.C. § 1292(b). As the Court previously
observed, “invalidation of Section 227(b)(1)(A)(iii) would release [Time Warner] from liability.”
Mejia, 2017 WL 3278926, at *12. 2 If the TCPA violates the First Amendment for any of the
three reasons Time Warner posits, then the Mejia and Johnson actions could not proceed against
Time Warner.
The second § 1292(b) requirement is a much closer call. It is difficult to define precisely
what qualifies as a “substantial ground for difference of opinion.” 28 U.S.C. § 1292(b). The
Second Circuit has explained that substantial grounds may exist where “the issues are difficult
and of first impression,” Klinghoffer v. S.N.C. Achille Lauro Ed Altri-Gestione Motonave Achille
Lauro in Amministrazione Straordinaria, 921 F.2d 21, 25 (2d Cir. 1990), but it has also

2

The Mejia and Johnson Plaintiffs argue that invalidation of § 227(b)(1)(A)(iii)
would not terminate their actions because the appropriate judicial remedy would sever the
government-debt exception—subjecting all messages to the same prohibition, and leaving Time
Warner liable. (See Mejia Dkt. No. 166 at 2‒4; Johnson Dkt. No. 86 at 2‒4.) However, at this
early stage of litigation and without the benefit of full and focused briefing, the Court declines to
prematurely venture a hypothesis about the severability of the challenged provision.
5

cautioned that “the mere presence of a disputed issue that is a question of first impression,
standing alone, is insufficient,” In re Flor, 79 F.3d 281, 284 (2d Cir. 1996). The substantialgrounds standard is necessarily cloudy at the edges because “[i]t is the duty of the district judge
. . . to analyze the strength of the arguments in opposition to the challenged ruling when deciding
whether the issue for appeal is truly one on which there is a substantial ground for dispute.” Id.
(alterations in original) (quoting Max Daetwyler Corp. v. Meyer, 575 F. Supp. 280, 283 (E.D. Pa.
1983)). Ultimately, “only ‘exceptional circumstances . . . justify a departure from the basic
policy of postponing appellate review until after the entry of a final judgment.’” Klinghoffer,
921 F.2d at 25 (quoting Coopers & Lybrand v. Livesay, 437 U.S. 463, 475 (1978)).
The government-debt exception. As to Time Warner’s first and second First Amendment
challenges to the TCPA 3—both based on the government-debt exception—the Court concludes
that “substantial ground for difference of opinion” does not exist as to § 227(b)(1)(A)(iii)’s
ability to survive strict scrutiny.
The cases Time Warner proffers as evidence of judicial disagreement are lacking. Time
Warner has identified cases in which other courts have found a privacy interest insufficiently
compelling, or have found a statute serving such an interest insufficiently tailored. (See Mejia
Dkt. No. 156 at 5‒6; Johnson Dkt. No. 80 at 5‒6.) But the parallels between the restrictions at
issue in Time Warner’s cases and the TCPA’s government-debt exception cannot be drawn at a

3

The Court treats Time Warner’s “content-based” and “speaker-based” objections
to the government-debt exception together. The Opinion and Order concluded that “the absence
of TCPA liability for government speakers” does not trigger strict scrutiny. Mejia, 2017 WL
3278926, at *15. However, even if other jurists would disagree and apply strict scrutiny, that
difference of opinion would be of no consequence—i.e., it does not present “a controlling
question of law” that would “materially advance the ultimate termination of the litigation,” 28
U.S.C. § 1292(b)—if the restriction passes strict scrutiny. The Court concludes that it does, and,
as explained below, concludes that there are no substantial grounds for disagreement as to the
Court’s application of strict scrutiny to the government-debt exception.
6

level of granularity that would indicate a “substantial ground for difference of opinion” among
jurists. 4 28 U.S.C. § 1292(b) (emphasis added). Indeed, of the three other courts that have
considered whether the TCPA (in its current form) passes strict scrutiny, all three have
concluded that it does. See Holt v. Facebook, Inc., 240 F. Supp. 3d 1021, 1034 (N.D. Cal. 2017);
Brickman v. Facebook, Inc., 230 F. Supp. 3d 1036, 1046 (N.D. Cal. 2017); Greenley v.
Laborers’ Int’l Union of N. Am., No. 16 Civ. 3773, 2017 WL 4180159, at *13‒14 (D. Minn.
Sept. 19, 2017). 5
Additionally, strict scrutiny is not “strict in theory but fatal in fact.” Williams-Yulee v.
Florida Bar, 135 S. Ct. 1656, 1666 (2015) (quoting Adarand Constructors, Inc. v. Pena, 515
U.S. 200, 237 (1995)). The Court is unwilling to adopt a per se rule that would require
certification for interlocutory appeal of any order in which a court applies strict scrutiny analysis.
Such a mechanical certification would undermine the purpose of § 1292(b) and the finaljudgment rule, which “preserves the proper balance between trial and appellate courts, minimizes

4

The Opinion and Order’s strict scrutiny analysis focused on whether an
exemption for federal government-debt collection satisfies the First Amendment. In its motion
for certification, Time Warner raises a new argument challenging the constitutionality of the
exemption with respect to government entities that do not enjoy sovereign immunity, such as
county and municipal governments. (See Mejia Dkt. No. 156 at 7; Johnson Dkt. No. 80 at 7.)
This argument was not presented to the Court in Time Warner’s motions for judgment on the
pleadings (see Mejia 83 at 8‒10; Johnson Dkt. No. 53 at 12‒14), and thus would be waived on
appeal. As a result, Time Warner’s local-government argument is irrelevant to the instant
motion for a certificate of appealability.
5

A fourth case, Mey v. Venture Data, LLC, concluded that the TCPA is facially
content-neutral. 245 F. Supp. 3d 771, 792‒93 (N.D. W. Va. 2017). While Mey evinces
disagreement among courts over the appropriate level of scrutiny to apply to the TCPA, that is
not the kind of disagreement that could “materially advance the ultimate termination of the
litigation.” 28 U.S.C. § 1292(b). If Mey is correct, then this Court was unduly cautious in
applying strict scrutiny. But the statute survives—and Time Warner remains potentially liable—
either way.
7

the harassment and delay that would result from repeated interlocutory appeals, and promotes the
efficient administration of justice.” Microsoft Corp. v. Baker, 137 S. Ct. 1702, 1712 (2017).
The FCC Authorization. Time Warner’s third First Amendment objection to the
TCPA—namely, its authorization to the FCC to create additional exemptions, see 47 U.S.C.
§ 227(b)(2)(C)—is more easily resolved. The Court reiterates that “[t]he mere fact that the FCC
could exercise this authority in a manner that runs afoul of the First Amendment does not imply
that the grant of authority is itself unconstitutional.” Mejia, 2017 WL 3278926, at *15. The
other courts to consider this question have agreed. See Brickman, 230 F. Supp. 3d at 1045; Holt,
240 F. Supp. 3d at 1032‒33; Greenley, 2017 WL 4180159, at *13.
Accordingly, the Court denies Time Warner’s motion for a certificate of appealability
and denies as moot Time Warner’s request for a stay pending appeal.
III.

Motion To Stay
Separately from its motion under § 1292(b), Time Warner asks this Court to stay both the

Mejia and Johnson actions pending the D.C. Circuit’s disposition of ACA International v. FCC,
No. 15-1211 (D.C. Cir.). At issue in ACA International, among other things, is the FCC’s final
order interpreting the meaning of “automatic telephone dialing system” under the TCPA. Oral
argument in that case was held in October 2016.
“[T]he power to stay proceedings is incidental to the power inherent in every court to
control the disposition of the causes on its docket with economy of time and effort for itself, for
counsel, and for litigants.” Louis Vuitton Malletier S.A. v. LY USA, Inc., 676 F.3d 83, 96 (2d Cir.
2012) (alternation in original) (quoting Landis v. N. Am. Co., 299 U.S. 248, 254 (1936)) (internal
quotation marks omitted). Although this Court previously denied Time Warner’s motion for a
stay pending a decision in ACA International, the Court ordered a staged discovery schedule that

8

limited the scope of initial discovery to the claims of the named plaintiffs. (See Mejia Dkt. No.
35 at 33:1‒34:11; Johnson Dkt. No. 48 at 13:18‒14:11.)
That stage of discovery has now ended, and the equities have changed. On one hand, the
risk of prejudice to Time Warner is higher. Both the Mejia and Johnson actions purport to
represent a class of individuals who received calls placed by an ATDS. Without a stay, broad
class-wide discovery may proceed based on an interpretation of “ATDS” that might be modified
or narrowed as a result of ACA International. 6 On the other hand, given that ACA International
will likely be decided soon, any prejudice to Plaintiffs from a stay will be minimal and shortlived. In sum, because the disposition of ACA International could significantly alter the
regulatory landscape—and alter it soon—the Court concludes that judicial economy counsels in
favor of staying both the Mejia and Johnson actions pending resolution of ACA International. 7
IV.

Conclusion
For the foregoing reasons, Time Warner’s motion for an order certifying its Opinion and

Order for interlocutory review is DENIED. Time Warner’s motion for an order staying the
Mejia and Johnson actions pending the D.C. Circuit’s resolution of ACA International v. FCC,
No. 15-1211 (D.C. Cir.) is GRANTED.
The Clerk of Court is directed to close the motion at Docket Number 155 in 15-CV-6645
and the motion at Docket Number 79 in 15-CV-6518.

6

The D.C. Circuit’s decision will not directly bind this Court; it will, however, bind
the FCC, see 28 U.S.C. § 2342(1), whose final order defining an ATDS supplies a basis for Time
Warner’s liability.
7

Because both the Mejia and Johnson actions are stayed pending a decision in ACA
International, the Court denies as moot—without prejudice to renewal—Time Warner’s separate
motion to stay Johnson in favor of Mejia.
9

Time Warner shall promptly notify this Court in writing, via ECF, of the D.C. Circuit’s
decision in ACA International. Within 21 days of such notice, the parties are directed to file a
letter with the Court proposing a timeline for further proceedings. Time Warner may renew its
motion for an order staying the Johnson action at that time.
SO ORDERED.
Dated: November 17, 2017
New York, New York
____________________________________
J. PAUL OETKEN
United States District Judge

10