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Mejia v. Time Warner Cable Inc.

United States District Court, S.D. New York

November 17, 2017

RAQUEL S. MEJIA, LEONA HUNTER, and ANNE MARIE VILLA, on behalf of themselves and all others similarly situated, Plaintiffs,
v.
TIME WARNER CABLE INC., Defendant. ALLAN JOHNSON, Plaintiff,
v.
TIME WARNER CABLE INC., Defendant.

          OPINION AND ORDER

          J. PAUL OETKEN, UNITED STATES DISTRICT JUDGE

         Time Warner Cable, Inc. (“Time Warner”) is the sole defendant in two actions, separate 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).

         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 Opinion and Order dated August 1, 2017, this Court agreed that § 227(b)(1)(A)(iii) is content-based 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 ...


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