By Kevin Brown, of Waller Lansden Dortch & Davis LLP
The sports world is under attack again for its text marketing tactics directed to consumers. This time the target is Tampa Bay Sports & Entertainment, LLC, the owner of the National Hockey League team, the Tampa Bay Lightning. In a federal class action lawsuit filed in March 2019 (Bryan Hanley vs. Tampa Bay Sports and Entertainment LLC, Case No. 8:19-CV-550-CEH-CPT (M.D. Fla), plaintiff Bryan Hanley alleges that the Lightning’s owner violated the Telephone Consumer Protection Act (TCPA) by sending more than a dozen marketing text messages to Mr. Hanley’s cellphone without his consent. Such TCPA class actions are nothing new to sports franchises seeking to engage their fans with omnichannel marketing. But what is relatively new is that TCPA defendants (like the Lightning’s owner) are striking back with sweeping constitutional challenges predicated on the First Amendment.
The TCPA (47 U.S.C. § 227) was enacted in 1991 to protect consumers from receiving unsolicited telemarketing messages. Its reach now includes messages sent by telephone, fax or text. In 2015, Congress exempted from this restriction messages made by government officials or private entities to collect a debt owed to or guaranteed by the United States, such as a student loan. That amendment (generally known as the Government Debt Exception), coupled with the Supreme Court’s decision in Reed v. Town of Gilbert, 135 S.Ct. 2218 (2015), has spawned a series of challenges to strike down the TCPA (in its entirety) as violating the First Amendment. Proponents of these challenges argue that the TCPA has steadily become a full-throttle restriction on speech— broadly and categorically restricting purportedly “unwanted speech” to consumers under the guise of a content-neutral regulation.
The Lightning’s owner (Tampa Bay Sports) has recently made similar arguments. On April 29, 2019, Tampa Bay Sports filed a Federal Rule 12(b)(6) motion to dismiss Hanley’s complaint on grounds that the TCPA is an unconstitutional restriction on speech. In doing so, Tampa Bay Sports argued that the TCPA unlawfully discriminates based on the content of the speech— citing the Government Debt Exception and certain healthcare-related calls (exempted by the Federal Communications Commission). In other words, according to Tampa Bay Sports, the TCPA discriminates in favor of governmental speakers and government-authorized speech over all other speech (including that of private businesses like Tampa Bay Sports). As such, Tampa Bay Sports argued that the TCPA is subject to “strict scrutiny” and fails that test because the TCPA is not narrowly tailored to serve a compelling governmental interest.
Anticipating Hanley’s response, Tampa Bay Sports also preemptively argued that the TCPA’s sweeping unconstitutionality could not be remedied by severing the unconstitutional exemptions. This “severability” tactic, recently employed by the Fourth Circuit in American Association of Political Consultants, Inc. v. FCC, No. 18-1588, 2019 U.S. App. LEXIS 12127 (4th Cir. April 24, 2019), provides the Courts with a way to salvage a constitutionally challenged statute by severing and invalidating its flawed portions. Tampa Bay Sports asserted that severability is not and was not an appropriate result in the TCPA context because of the inherently special status of speech. That is, the elimination of offending exceptions for discriminatory speech results in the restriction of more speech (a result that itself violates the First Amendment).
On May 30, 2019, Hanley’s lawyers filed their opposition to Tampa Bay Sports’ motion to dismiss. Perhaps not surprisingly, Hanley’s lawyers took Tampa Bay Sports to task for running a “Hail Mary” play, “which seeks to invalidate a decades old pro-consumer federal statute.” In so doing, Hanley argued that the TCPA has consistently withstood First Amendment challenges because, according to Hanley, it is a content-neutral restriction. The narrow exceptions relied upon by Tampa Bay Sports (including the Government Debt Exception and healthcare related calls) are “relationship-based” exceptions, not content-based restrictions on speech. In any event, according to Hanley, the government’s messages are appropriately treated preferentially since the TCPA has never applied to government speech and it is common for laws to distinguish between the government and private actors. As such, Hanley argued that the TCPA is subject only to “intermediate scrutiny,” but in any event, also survives strict scrutiny.
As for severability, Hanley responded that the Communication Act of 1934, which encompasses the TCPA, included a “separability” provision requiring the invalid portions of the statute to be severed and the remainder preserved. According to Hanley, “should the Court agree with [Tampa Bay Sports’] gripes about the TCPA, it should follow the guidance issued by [the Fourth Circuit], strike only the debt-collection exemption of the law, and keep the remainder of this landmark telecommunications safeguard in place.”
As of the date of this writing, the Court has yet to rule on Tampa Bay Sports’ motion to dismiss. Regardless of its decision, the debate over the TCPA’s constitutionality is far from over. On the one hand, challenges to the statute on strict scrutiny grounds are on the rise, but on the other hand, the TCPA has been around and applied for 28 years. In any event, sports franchises should continue to do their best to avoid getting caught in this costly debate altogether— by, among other things, carefully monitoring all text marketing messages and campaigns for compliance with the TCPA.
Kevin Brown is a partner in the Austin, Texas office of Waller Lansden Dortch & Davis LLP. Kevin’s experience includes advertising and marketing law matters, copyright and trademark infringement, false advertising, internet defamation, social media liability, contract and real estate disputes, and general business torts. email@example.com.