United States District Court, N.D. Alabama, Southern Division
MEMORANDUM OPINION AND ORDER
MADELINE HUGHES HAIKALA UNITED STATES DISTRICT JUDGE
Carolyn Coleman, Justin Cooper, Debbie Glover, Jalita Flood,
Shirley Ray, Cynthia Paul, Ashley Sherrin, Stephen Pollitt,
Jameisha Tripp, and Barbara Turner allege that defendant
Santander Consumer USA violated the Telephone Consumer
Protection Act (TCPA), 47 U.S.C. § 227(b)(1)(A)(iii), by
using an automatic telephone dialing system to call the
plaintiffs' cell phones without the plaintiffs' prior
express consent. (Doc. 83, ¶¶ 17-30). Santander argues
that the TCPA, as amended by the Bipartisan Budget Act of
2015, violates the First Amendment. (Doc. 86, p. 4).
Therefore, Santander argues, because the TCPA is invalid, the
Court should dismiss the plaintiffs' fourth amended
complaint pursuant to Federal Rule of Civil Procedure
12(b)(6). (Doc. 86). For the reasons stated below, the Court
denies Santander's motion.
RULE 12(b)(6) STANDARD
Rule 12(b)(6), a defendant may move to dismiss a complaint
for “failure to state a claim upon which relief can be
granted.” See Fed. R. Civ. P. 12(b)(6). To
survive a Rule 12(b)(6) motion to dismiss, a complaint must
contain “a short and plain statement of the claim
showing that the pleader is entitled to relief.”
Fed.R.Civ.P. 8(a)(2). In considering a defendant's motion
to dismiss a complaint, the Court accepts the plaintiff's
allegations as true and asks whether the plaintiff alleges
facts that allow the Court to “draw the reasonable
inference that the defendant is liable for the misconduct
alleged.” Aschcroft v. Iqbal, 556 U.S. 662,
678 (2009); see Maledy v. City of Enter., 2012 WL
1028176, at *1 (M.D. Ala. Mar. 26, 2012). A complaint that
alleges such facts is “‘plausible on its
face.'” Iqbal, 556 U.S. at 678 (quoting
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570
(2007)). A complaint brought pursuant to an unconstitutional
statute does not state a plausible claim. See Smith v.
Casino Ice Cream, LLC, 2008 WL 4541013, at *1 (S.D. Fla.
Oct. 9, 2008) (citing In re DeLorean Motor Co., 991
F.2d 1236, 1240 (6th Cir. 1993) for the proposition that, to
survive a 12(b)(6) motion to dismiss, a complaint must
“assert some viable legal theory”) (internal
quotation marks omitted).
First Amendment prohibits the enactment of laws that abridge
the freedom of speech, but not all laws that affect speech
are unconstitutional. Dana's R.R. Supply v. Atty.
Gen., Fla., 807 F.3d 1235, 1246, 1249 (11th Cir. 2015)
(citing U.S. Const. amend. I). To determine whether a law
violates the First Amendment, courts begin by asking whether
the law is content-based or content-neutral. See
generally, e.g., Reed v. Town of Gilbert, Ariz., 135
S.Ct. 2218 (2015); Solantic, LLC v. City of Neptune
Beach, 410 F.3d 1250, 1258 (11th Cir. 2005).
Content-based laws, i.e., “those that target
speech based on its communicative content, ” generally
are subject to strict scrutiny and “may be justified
only if the government proves that they are narrowly tailored
to serve compelling state interests.” Reed,
135 S.Ct. at 2226. Laws that do not make distinctions based
on the message a speaker conveys, i.e.,
content-neutral laws, are analyzed under a less severe
intermediate scrutiny standard. See Solantic, 410
F.3d at 1258. Under the content-neutral standard, a
government may restrict the “time, place, or manner of
protected speech, provided the restrictions . . . are
narrowly tailored to serve a significant government interest,
and that they leave open ample alternative channels for
communication of the information.” Ward v. Rock
Against Racism, 491 U.S. 781, 791 (1989).
these frameworks, the United States Supreme Court has
articulated a separate standard for analyzing restrictions on
commercial speech.See Dana's R.R. Supply v. Atty.
Gen., Fla., 807 F.3d 1235, 1246, 1249 (11th Cir. 2015)
(citing Central Hudson Gas & Elec. Corp. v. Pub.
Serv. Comm'n of New York, 447 U.S. 557, 564 (1980)).
Under the so-called Central Hudson test, courts
assess the constitutionality of restrictions on commercial
speech by asking: (1) if the challenged law regulates speech
that is “‘neither misleading nor related to
unlawful activity[, ]'” (2) if the government has a
“‘substantial interest'” at stake, (3)
if the challenged law “‘directly
advance[s]'” the government's interest, and (4)
if the government's interest could be served by a
“‘more limited restriction[.]'” See
Dana's, 807 F.3d at 1249 (quoting Cent.
Hudson, 447 U.S. at 564).
the standard for time, place, or manner restrictions on
noncommercial content-neutral speech, the Central
Hudson test is one of intermediate scrutiny.
Dana's, 807 F.3d at 1246 (“For [commercial
speech], the inquiry is the more flexible, yet still
searching, standard of intermediate scrutiny.”);
see Moser v. Fed. Commc'ns Comm'n, 46 F.3d
970, 973 (9th Cir. 1995) (“[T]he tests for time, place,
or manner restrictions for content-neutral speech and
regulations for commercial speech . . . are essentially
identical.”). Even where commercial speech is
content-based, courts apply intermediate scrutiny. See
Id. (explaining that “the general rule that
content-based restrictions trigger strict scrutiny is not
absolute” and that “content-based restrictions on
certain categories of speech such as commercial . . . speech
. . . are given more leeway because of the robustness of the
speech and the greater need for regulatory
motion to dismiss, Santander argues that the TCPA is
content-based, but Santander stops short of asking the Court
to apply strict scrutiny because, Santander contends, the
TCPA regulates commercial speech. (Doc. 86, pp. 5-13).
Santander therefore asks the Court to apply intermediate
scrutiny and to analyze the constitutionality of the TCPA
under Central Hudson. (Doc. 86, p.
The Court disagrees with Santander's premise.
TCPA touches on economic activity, but the statute regulates
more than commercial speech. The TCPA is a
“‘hybrid' law ‘that implicates
commercial and political speech'” and
private speech. See Dana's, 807 F.3d at 1248
(quoting BellSouth Telecomms., Inc. v. Farris, 542
F.3d 499, 505 (6th Cir. 2008) (emphasis provided by
BellSouth). Under the TCPA, as amended in 2015, the
statute prohibits a person from using an automatic dialing
system to “make any call . . . other than a call made
for emergency purposes or made with the prior express consent
of the called party . . ., 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)-(b)(1)(A)(iii).
Thus, under § 227(b)(1)(A)(iii), unless the recipient of
the call consents beforehand, a person may neither use an
automatic dialing system to collect a private debt or propose
a commercial transaction, nor use an automatic dialing system
to advocate on behalf of a political candidate or play a
prank on a friend. Because of the breadth of this
restriction, the TCPA does not merely regulate commercial
speech. See Dana's, 807 F.3d at 1246-48.
Accordingly, like other courts that have addressed the
constitutionality of the TCPA, this Court will not analyze
the statute under Central Hudson. See Gomez v.
Campbell-Ewald Co., 768 F.3d 871, 876 (9th Cir. 2014);
Moser, 46 F.3d at 973; Wreyford v. Citizens for
Transp. Mobility, Inc., 957 F.Supp.2d 1378, 1380
(N.D.Ga. 2013); Strickler v. Bijora, Inc.,
2012 WL 5386089, at *5 (N.D. Ill. Oct. 30, 2012).
because the TCPA reaches both commercial and noncommercial
speech, the Court must determine if the statute is
content-based or content-neutral. To the extent that the TCPA
“applies to particular speech because of the topic
discussed or the idea or message expressed[, ]” the
TCPA is content-based, and the Court will apply strict
scrutiny under Reed. Reed, 135 S.Ct. at
2226. To the extent that the TCPA can be “justified
without reference to the content of the regulated speech,
” the TCPA is content-neutral, and the Court will apply
intermediate scrutiny under Ward. Id. at
2227 (quoting Ward, 491 U.S. at 791) (internal
quotation marks omitted).
227(b)(1)(A)(iii), as amended by the Bipartisan Budget Act of
2015, provides that:
It shall be unlawful for any person . . . to make any call
(other than a call made for emergency purposes or made with
the prior express consent of the called party) using any
automatic telephone dialing system . . . to any telephone
number assigned to a . . . cellular telephone service . . .,
unless such call ...