Kathryn Moser v. Federal Communications Commission

46 F.3d 970 63 USLW 2505 Kathryn MOSER; National Association of Telecomputer Operators, Plaintiffs-Appellees, v. FEDERAL COMMUNICATIONS COMMISSION, a federal agency; James H. Quello, in his capacity as interim Chairman of the Federal Communications Commission, Defendants-Appellants. No. 93-35686. United States Court of Appeals, Ninth Circuit. Argued and Submitted Oct. 31, 1994. Decided Feb. 6, 1995. Mark B. Stern, U.S. Dept. of Justice, Washington, DC, for defendants-appellants. Charles F. Hinkle, Stoel Rives Boley Jones & Grey, Portland, OR, for plaintiffs-appellees. Appeal from the United States District Court for the District of Oregon. Before: FLETCHER, D.W. NELSON, and RYMER, Circuit Judges. FLETCHER, Circuit Judge: 1 The Federal Communications Commission ("FCC") appeals the district court's ruling on summary judgment that a provision of the Telephone Consumer Protection Act of 1991, 47 U.S.C. Sec. 227 , banning prerecorded telemarketing calls violates the First Amendment. The FCC argues as a threshold matter that the district court lacked jurisdiction and, on the merits, that the district court erred in finding that the statute did not constitute a "reasonable fit" with…