SCOMA CHIROPRACTIC, P.A.

v.

NATIONAL SPINE AND PAIN CENTERS LLC

“Although faxes have become almost a relic of the past for most consumers, due to patient privacy laws, healthcare professionals still rely on faxes for certain communications.” Fischbein v. Olson Research Grp., Inc., 959 F. 3d 559, 564 (3d Cir. 2020). “This, of course, renders them a very captive and easily identifiable audience, as one of the few subgroups in the population that still commonly employ the use of a fax machine.” Id. Plaintiff Scoma Chiropractic, P.A. (“Scoma”) no longer wishes to be part of this captive audience. In the latest of its many similar lawsuits,¹ Scoma claims that Defendants National Spine and Pain Centers, LLC; Spine Center of Florida, LLC;

Center of Florida, LLC. For now, the Court will assume (as the parties do) that the fax came from all Defendants. In any case, the body of the fax reads: Pain Management Consultants is accepting appointments for in-office visits for urgent matters—as well as telemedicine appointments for non- urgent matters.

Pain Management Consultants is making telemedicine immediately available to its affiliated providers and their patients seeking treatment of acute and chronic pain. By quickly deploying telemedicine, not only is PMC providing an essential service to those suffering with pain, it is also helping to ensure patients don’t end up in overburdened Emergency Rooms, where the risk of contracting coronavirus will surely be higher. Providers interested in scheduling appointments for patients may call PMC directly at the number below. Patients may also visit the PMC website to facilitate immediate scheduling.

(Id.) Below this language is a phone number and a website for scheduling appointments. Immediately to the right of the language is a sizeable logo for “Pain Management Consultants, P.L.” (Id.) In smaller print at the bottom of the fax, the narrative continues: About Pain Management Consultants: Pain Management Consultants is an affiliate of National Spine and Pain Centers (NSPC). For more than 30 years, NSPC affiliated providers have been pioneers in the relief of chronic and acute pain, through minimally invasive procedures and leading-edge clinical research. Today, with more than 70 locations and 750 medical professionals facilitating nearly¹ million patient visits a year, NSPC continues to be the healthcare brand more people trust for access to pain relief providers than any other. NSPC’s stated mission is to end needless human pain and suffering by facilitating world-class care. For more information, visit [the same website in the box above]. (Id.) Scoma took exception to the fax and filed a class action complaint against Defendants for violating the TCPA. (Doc. 1.) Defendants move to dismiss because they believe their fax is not an advertisement as a matter of law, and because the TCPA’s junk-fax ban violates the First Amendment. (Doc. 21.) Due to the weight of the questions presented, the Court permitted not only an opposition brief by Scoma, but a reply and a sur-reply. (Docs. 25, 28, 43.) The Court also notes that, due to the constitutional question, the Government has intervened and filed a brief defending the constitutionality of the TCPA’s junk-fax provision. (Docs. 33, 42, 50.) But, as explained below, the Court declines to reach the constitutional question at this stage of the litigation.

LEGAL STANDARD

“At the motion to dismiss stage, all well-pleaded facts are accepted as true, and the reasonable inferences therefrom are construed in the light most favorable to the plaintiff.” Bryant v. Avado Brands, Inc., 187 F. 3d 1271, 1274 n.1 (11th Cir. 1999) (citing Hawthorne v. Mac Adjustment, Inc., 140 F. 3d 1367, 1370 (11th Cir.1998)). A complaint must provide “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Under this standard, the complaint “must contain sufficient factual matter, accepted as true, to

‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

DISCUSSION

I. A Reasonable Trier of Fact Could Conclude That the Fax is an Unsolicited Advertisement under the TCPA. The TCPA generally prohibits four types of telemarketing practices, one of which is “us[ing] any telephone facsimile machine, computer, or other device to send, to a telephone facsimile machine, an unsolicited advertisement.” 47 U.S.C. § 227(b)(1)(C) (emphasis added); see also Mims v. Arrow Fin. Servs., LLC, 565 U.S. 368, 373 (2012). The text of the statute defines an “unsolicited advertisement” as “any material advertising the commercial availability or quality of any property,

goods, or services which is transmitted to any person without that person's prior express invitation or permission, in writing or otherwise.” 47 U.S.C. § 227(a)(5). This definition is not especially helpful because it uses the word “advertising” to define what an “unsolicited advertisement” is. Relying on both legal and general dictionaries, the Eleventh Circuit has held that advertising is “[t]he action of drawing the public's attention to something to promote its sale.” Florence Endocrine Clinic, PLLC v. Arriva Med., LLC, 858 F. 3d

1362, 1366 (11th Cir. 2017) (quoting Advertising, Black's Law Dictionary 59 (8th ed. 2004)). Thus, for a fax to be an advertisement, it “must draw attention to the ‘commercial availability or quality’ of . . . products to promote their sale.” Id. at 1366–67 (quoting 47 U.S.C. § 227(a)(5)). According to the Federal Communications Commission (“FCC”)—which is delegated rulemaking authority by the TCPA—faxes that promote goods or services at no cost (like free magazine subscriptions or seminars) and faxes that purport to request survey responses may be advertisements if they “serve as a pretext to advertise commercial products and services.” In the Matter of Rules & Regulations Implementing the Tel. Consumer Prot. Act of 1991 Junk Fax Prevention Act of 2005, 21 F.C.C. Rcd. 3787, 3814–15 (2006) [hereinafter “2006 Order”]. “Thus, the

FCC contemplates that savvy companies may devise a multilayered approach to avoid violating the TCPA and acknowledges that an otherwise benign fax may violate the TCPA if it ultimately leads to the promotion of goods or services.” Comprehensive Health Care Sys. of the Palm Beaches, Inc. v. M³ USA Corp., 232 F. Supp. 3d 1239, 1242 (S.D. Fla. 2017) (citing Drug Reform Coordination Network, Inc. v. Grey House Publ'g, Inc., 106 F. Supp. 3d 9, 13 (D.D.C. 2015)).² Given the Eleventh Circuit’s and the FCC’s broad interpretations of the term

“advertisement,” dismissal for failure to state a claim seems rare in cases like this one; if a reasonable trier of fact could plausibly conclude that a fax might be an

“[p]roviders interested in scheduling appointments.” (Id.) And finally, in the proverbial fine print of the fax, there is a clarification that Pain Management Consultants is an affiliate of National Spine and Pain Centers, which “continues to be the healthcare brand more people trust for access to pain relief providers than any other.” (Id.) Viewing the facts in the complaint as true and drawing all inferences in favor of Scoma, a reasonable trier of fact may conclude that the fax is an advertisement because the language quoted above draws attention to Defendants’ in-office and telemedicine services in order to persuade “affiliated providers” to schedule appointments for “their patients [who are] seeking treatment of acute and chronic pain.” Cf. Scoma Chiropractic, P.A., 2017 WL 3149360, at *2; Neurocare Inst. of Cent. Fla., P.A., 8 F. Supp. 3d at 1367. Although the fax may not be geared toward the ultimate consumers of Defendants’ services (i.e., patients), this detail is not dispositive.³ Cf. Elan Pharm. Rsch. Corp. v. Emp. Ins. of Wausau, 144 F. 3d 1372, 1379 & n.11 (11th Cir. 1998) (explaining that communications that induce doctors to prescribe certain drugs would constitute “advertising” in a non-TCPA case).

227(b)(1)(B) (containing another “emergency purposes” exception for calls to residential telephone lines using an artificial or prerecorded voice without consent). On March 20, 2020, the FCC made a declaratory ruling that the COVID-19 pandemic was a national “emergency” under the TCPA, and therefore certain automated calls related to the pandemic were permitted. In the Matter of Rules & Regulations Implementing the Tel. Consumer Prot. Act of 1991, No. CG02-278, 2020 WL 1491502, at *2 (OHMSV Mar. 20, 2020) [hereinafter “2020 Order”]. The FCC’s ruling provides examples of calls that are made for emergency purposes and others that are not—the latter category includes calls that advertise things like grocery delivery services or health insurance, which might have increased relevance during a pandemic but are not relevant to “emergencies” in any meaningful sense. Id. None of this information bears on the case at hand because the TCPA’s junkfax provision does not have an “emergency purposes” exception. See In the Matter of Rules & Regulations Implementing the Tel. Consumer Prot. Act of 1991, 31 F.C.C. Rcd. 13289, 13294 (2016). Nevertheless, Defendants insist that the FCC’s declaratory ruling is relevant to this case because “emergency” calls are mutually exclusive from advertisements, and “[t]here is no reason to think that a particular message would be advertising if conveyed in a fax, but not if conveyed in a call or text message.” (Doc. 21 at 10.) But there is indeed a reason: the text of the TCPA, which is the principal indicator of legislative intent, does not contain an “emergency purposes” exception in the junk-fax provision. The Court therefore declines to import the reasoning of the FCC’s declaratory ruling into this case.⁴

Second, Defendants argue that the fax was informational—rather than commercial—based on various cases. (Doc. 21 at 12–16.) These cases all refer to the same 2006 Order discussed above, which explains: [F]acsimile communications that contain only information, such as industry news articles, legislative updates, or employee benefit information, would not be prohibited by the TCPA rules. An incidental advertisement contained in a newsletter does not convert the entire communication into an advertisement. Thus, a trade organization's newsletter sent via facsimile would not constitute an unsolicited advertisement, so long as the newsletter's primary purpose is informational, rather than to promote commercial products. 21 F.C.C. Rcd. at 3814–15. Then, in a footnote, the 2006 Order explains that to determine if something is a “bona fide ‘informational communication,’” the FCC

Accordingly, Scoma has done enough to state a claim capable of advancing past the pleading stage. See Arkin v. Innocutis Holdings, LLC, 188 F. Supp. 3d 1304, 1308 (M.D. Fla. 2016) (“Defendants' argument that the Fax is purely informational requires examination of factors such as its frequency, text changes from fax to fax, and whether or not the recipients are subscribers, i.e. information outside the four-corners of the Fax.”).5 The fax received by Scoma could be an unsolicited “advertisement” under the TCPA. 5 Defendants note that the fax lacks typical hallmarks of sales, like prices or special offers. (Doc. 21 at 14–15.) But that does not mean the fax is informational—the Court has already explained that the fax may not be directed to the ultimate consumer of the services, so including the price would not make much sense. Cf. Elan Pharm. Rsch. Corp., 144 F. 3d at 1379 & n.11. Defendants also note that the fax is directed to “affiliated providers,” and therefore the purpose of the fact was to facilitate an ongoing relationship, not solicit new business. (Doc. 21 at 14.) Neither the pleadings nor the parties’ legal memoranda clarify whether Scoma has any ongoing relationship with Defendants. II. The Court Declines to Reach the Constitutionality of TCPA’s Junk- Fax Provision at this Juncture. The First Amendment unequivocally provides that “Congress shall make no law . . . abridging the freedom of speech.” U.S. Const. amend. I. Over time, the Supreme Court’s jurisprudence “has rejected an absolutist interpretation of those words.” FEC v. Wis. Right To Life, Inc., 551 U.S. 449, 482 (2007). Accordingly, the degree of protection afforded by the First Amendment generally depends on how the speech and the challenged restriction are categorized. See, e.g., Otto v. City of Boca Raton, 981 F. 3d 854, 865 (11th Cir. 2020) (“[C]ertain types of speech receive either less protection or no protection under the First Amendment.”). Defendants’ constitutional challenge to the junk-fax ban asks the Court to thread the needle between two such categories. On one hand, content-based restrictions “are presumptively unconstitutional” and subject to strict scrutiny, which requires the restrictions be “narrowly tailored to serve compelling state interests.” Reed v. Town of Gilbert, 576 U.S. 155, 163 (2015). On the other hand, restrictions on commercial speech that concerns “lawful activity” and is not “misleading” must satisfy a three-prong test: (1) the government interest must be “substantial”; (2) the regulation must “directly advance[] the governmental interest asserted,” and (3) the regulation cannot be “more extensive than is necessary to serve that interest.”⁶ Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm'n, 447

“AAPC”]. In its severability analysis, the plurality concluded that the Government’s interest in upholding the remainder of the robocall restriction was “protecting consumer privacy.” Id. at 2348 (emphasis added). Regardless of whether this interest is compelling or substantial, it is not directly discussed by any of the parties. (Doc. 25 at 19.); see also Wollschlaeger v. Governor of Fla., 848 F. 3d 1293, 1308 (11th Cir. 2017) (en banc) (holding that “protection of individual privacy” was at least a “substantial government interest” (citation omitted)). Third, the Government draws a fine distinction between: (1) restrictions that

“appl[y] to non-commercial speech in addition to commercial speech and [make] content-based distinctions within those categories”; and (2) restrictions that “regulat[e] only commercial speech.” (Doc. 50 at 14.) The Government believes that the junk-fax ban falls into the latter category and is therefore distinguishable from cases like Reed. Accord AAPC, 140 S. Ct. at 2364 (Gorsuch, J., concurring in the judgment in part and dissenting in part) (explaining that, in his view, the robocall ban implicates both political and commercial speech, and therefore the entire robocall ban should be struck down). But the FCC has broadly construed the term “advertisement” to include even communications that do not overtly sell or promote any goods or services. 2006 Order, 21 F.C.C. Rcd. at 3814–15; see also M³ USA Corp., 232 F. Supp. 3d at 1242 (“[A]n otherwise benign fax may violate the TCPA if it ultimately leads to the promotion of goods or services.” (citing Drug Reform Coordination Network, Inc., 106 F. Supp. 3d at 13)). None of the parties have addressed whether the FCC’s broad construction potentially expands the junk-fax ban to non-commercial speech. And if it does, then the Government’s nuanced position may not carry the day. Fourth, as already mentioned above, the question of whether the junk-fax ban serves a compelling or significant interest would be better addressed at the summary judgment phase because the Court would have the benefit of extrinsic evidence. Cf. Cambridge Christian Sch., Inc., 942 F. 3d at 1223. Given these unaddressed issues in the parties’ briefing, the Court finds it prudent to defer deciding the constitutional issue at this time. Accordingly, the Court denies Defendants’ motion to dismiss without prejudice to reassert their constitutional argument at the summary judgment phase. If the parties wish to revisit the constitutionality of the junk-fax ban, the Court would find it helpful to address all the issues identified above and provide the Court with any extrinsic evidence that they deem relevant to the interests served by the junk-fax ban.

CONCLUSION

Defendants’ motion to dismiss (Doc. 21) is DENIED without prejudice to Defendants’ ability to re-raise their constitutional argument at the summary judgment stage. No later than March 26, 2021, Defendants shall answer Scoma’s complaint. ORDERED in Fort Myers, Florida, on March 12, 2021. an SOA Cable’

JOHN L. BADALAMENTI

UNITED STATES DISTRICT JUDGE