(Editor’s Note: The following article appeared in full in Sports Litigation Alert. To see the full article, please subscribe to the Alert.)
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 …
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