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Woods v. Santander Consumer USA Inc.

United States District Court, N.D. Alabama, Southern Division

March 30, 2017

CARMEN WOODS, et al., Plaintiffs,
v.
SANTANDER CONSUMER USA INC., et al., Defendants.

          MEMORANDUM OPINION AND ORDER

          MADELINE HUGHES HAIKALA UNITED STATES DISTRICT JUDGE

         Plaintiffs 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).[1] 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.

         I. RULE 12(b)(6) STANDARD

         Under 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).

         III. DISCUSSION

         The 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).[2] 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).

         Alongside these frameworks, the United States Supreme Court has articulated a separate standard for analyzing restrictions on commercial speech.[3]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).

         Like 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 flexibility”).

         In its 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. 13).[4] The Court disagrees with Santander's premise.

         The 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).[5] 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).

         Instead, 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).

         A. 2015 Amendments

         Section 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 ...

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