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Sliwa v. Bright House Networks, LLC

United States District Court, M.D. Florida, Fort Myers Division

March 29, 2018

STEPHAN H. SLIWA, individually and on behalf of all others similarly situated, Plaintiff,



         This matter comes before the Court on defendant Bright House Networks, LLC's Motion for Judgment on the Pleadings (Doc. #73) filed on June 16, 2017. Bright House seeks a judgment on one of its affirmative defenses which relates to two of Plaintiff's claims.[1] Plaintiff filed a Response in Opposition (Doc. #81) on July 14, 2017, and Bright House filed a Reply (Doc. #86) on August 7, 2017. Also before the Court is the Memorandum in Opposition (Doc. #113) to the Motion for Judgment on the Pleadings filed by Intervenor the United States of America on November 2, 2017, [2] and Bright House's Reply thereto (Doc. #116). For the reasons set forth below, the Court denies Bright House's Motion for Judgment on the Pleading and strikes its twenty-second affirmative defense.


         Stephan H. Sliwa (Plaintiff) has filed a five-count Amended Class Action Complaint (the Amended Complaint) (Doc. #46) against Bright House Networks, LLC (Bright House) and Advanced Telesolutions, Inc. (ATI) (collectively, Defendants) alleging violations of, and seeking money damages and injunctive relief pursuant to, the Telephone Consumer Protection Act (TCPA), 47 U.S.C. § 227 et seq., the Florida Consumer Collection Practices Act (FCCPA), Fla. Stat. § 559.55 et seq., and the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. § 1692 et seq. Specifically, Plaintiff alleges that since February 2015, Defendants have harassed him (and others) by calling his cellphone hundreds of times using an automatic telephone dialing system or pre-recorded or artificial voice technology (i.e., “robocalled” him), even after he instructed them to stop. These calls are alleged to have been made in an attempt to recover a consumer debt that Plaintiff owed Bright House.

         Bright House and ATI each filed an Answer and Affirmative Defenses (Docs. ## 56, 57). Relevant here, Bright House's twenty-second affirmative defense alleges that, “[a]s applied, the TCPA violates the First Amendment of the United States Constitution. For example, the TCPA imposes content-based restrictions on speech that fail to withstand strict scrutiny.” (Doc. #56, p. 26.)

         Bright House now seeks a judgment on the pleadings on the TCPA claims (Counts I and III), asserting, consistent with that affirmative defense, that “the provision of the TCPA on which [Plaintiff] relies” - Section 227(b)(1)(A)(iii) (i.e. the anti-robocall provision) - “contains impermissible speaker- and content-based restrictions on speech that cannot survive strict scrutiny.” (Doc. #73, p. 7.) Because that provision violates the First Amendment, Bright House maintains that it cannot be held liable under the TCPA, even assuming the veracity of plaintiff's allegations, and is thus entitled to a judgment on those claims.[3]

         Not surprisingly, Plaintiff and the United States (sometimes collectively referred to as Plaintiffs herein) disagree. They assert that: (a) Section 227(b)(1)(A)(iii) should not be reviewed under a strict-scrutiny standard; (b) the statute is constitutional under whatever standard is applied; (c) even if the anti-robocall provision is unconstitutional, the offending clause is severable and Defendants remain liable under the rest of the provision; and (d) consequently, Bright House lacks Article III standing to assert a First Amendment challenge.

         Responding to the latter two arguments, Bright House contends that “‘severability' is not a concept that could even apply in this posture, given that [Bright House] is a defendant raising the First Amendment as a defense to its potential liability.” (Docs. ## 86, p. 9; 116, p. 2.) Bright House argues further that severing the Government-Debt Exception would be inconsistent with “congressional intent” (Doc. #86, p. 7), and that, in any event, severability does not impact standing. (Id. pp. 2-3, 7.)


         Rule 12(c) of the Federal Rules of Civil Procedure provides that a party may move for judgment on the pleadings “[a]fter the pleadings are closed.” Fed.R.Civ.P. 12(c). “Judgment on the pleadings is proper when no issues of material fact exist, and the moving party is entitled to judgment as a matter of law based on the substance of the pleadings and any judicially noticed facts.” Interline Brands, Inc. v. Chartis Specialty Ins. Co., 749 F.3d 962, 965 (11th Cir. 2014) (internal citation omitted). The materials considered by the court on a motion for judgment on the pleadings include the complaint, answer, and any exhibits thereto. Grossman v. NationsBank, N.A., 225 F.3d 1228, 1231 (11th Cir. 2000). In reviewing a defense motion for judgment on the pleadings, a court must “accept the facts alleged in the complaint as true and draw all inferences that favor the [plaintiff].” Bankers Ins. Co. v. Fla. Residential Prop. & Cas. Joint Underwriting Ass'n, 137 F.3d 1293, 1295 (11th Cir. 1998).

         A Rule 12(c) motion for judgment on the pleadings is the proper way to seek dismissal of a complaint or specific claims “on the basis of an affirmative defense.” Brownmark Films, LLC v. Comedy Partners, 682 F.3d 687, 690 (7th Cir. 2012). “An affirmative defense is generally a defense that, if established, requires judgment for the defendant even if the plaintiff can prove his case by a preponderance of the evidence.” Wright v. Southland Corp., 187 F.3d 1287, 1303 (11th Cir. 1999). Pursuant to Federal Rule 12(f), courts may also strike an “insufficient defense” from a pleading, either upon a motion or sua sponte.


         In 1991, Congress passed the TCPA seeking to protect individual consumers against the “invasion of privacy” cause by unwanted automated and prerecorded phone calls (i.e. robocalls). Mims v. Arrow Fin. Servs., LLC, 565 U.S. 368, 372 (2012); Mais v. Gulf Coast Collection Bureau, Inc., 768 F.3d 1110, 1117 (11th Cir. 2014). The TCPA prohibits, in relevant part, “any person” from “mak[ing] any call (other than a call . . . made with the prior express consent of the called party) using any automatic telephone dialing system or an artificial or prerecorded voice . . . to any . . . cellular telephone . . . unless such call is made solely to collect a debt owed to or guaranteed by the United States.”[4] 47 U.S.C. § 227(b)(1)(A) (iii) (emphasis added). This “unless” clause - sometimes referred to as the Government-Debt Exception - was added in 2015 as part of the Bipartisan Budget Act of 2015, Pub. L. No. 114-74, 129 Stat. 584, 588 (2015), and forms the basis of Bright House's First Amendment challenge.

         As framed by the motion and the responding papers, there are two threshold issues the Court must address before it can reach the substantive merits of that challenge. First, does Bright House have standing to assert a First Amendment affirmative defense - and, by extension, to seek a judgment on the pleadings on that ground? And second, if so, does that affirmative defense entitle Bright House to a judgment as a matter of law on Plaintiff's TCPA claims? The Court concludes that although Bright House has standing, it has not asserted an affirmative defense that would preclude an ultimate judgment in Plaintiff's favor under the TCPA.

         A. Bright House's Standing to Assert a First ...

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