United States District Court, M.D. Florida, Fort Myers Division
STEPHAN H. SLIWA, individually and on behalf of all others similarly situated, Plaintiff,
BRIGHT HOUSE NETWORKS, LLC and ADVANCED TELESOLUTIONS, INC., Defendants, and UNITED STATES OF AMERICA, Intervenor.
OPINION AND ORDER
E. STEELE, UNITED STATES DISTRICT JUDGE
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. 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,  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
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.
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.)
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
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
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.)
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).
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.
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.” 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.
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.
Bright House's Standing to Assert a First ...