Sometimes what the Court does not address is the most interesting issue in an opinion.  That’s the case we are covering today.  Scoma v. National Spine & Pain Centers, LLC, 2:20-cv-430-JLB-MRM, 2021 U.S. Dist. LEXIS 46655, *7 (M.D. Fla. March 12, 2021).

The TCPA prohibits using any facsimile machine to send “an unsolicited advertisement.”  47 U.S.C. 227(b)(1)(C).  In a case involving a frequent TCPA plaintiff, Scoma Chiropractic, P.A., a court in the Middle District of Florida denied a Defendants’ Motion to dismiss.  First, the Court rejected Defendants’ argument that the fax at issue did not qualify as an advertisement.  Second, the Court also raised, but did not resolve, important First Amendment issues about the speech implicated by the fax.

Let’s start where Junk Fax cases always start: with the fax.  Here, the fax included a bold header that read, “In-Office Telemedicine Appointments for Pain Available!”  It then described how the Defendants were “accepting appointments for in-office visits for urgent matters–as well as telemedicine appointments for non-urgent matters.”  And it mentioned how its telemedicine “ensured patients don’t end up in the overburdened Emergency Rooms, where the risk of contracting coronavirus will surely be higher.”  The fax also purported to provide contact information for providers “interested in scheduling appointments for patients.”

Summarizing Eleventh Circuit precedent, the Court explained that advertising is “the action of drawing the public’s attention to something to promote its sale.”  Likewise, the Court explained FCC guidance that even a fax that “purport[s] to request survey responses” may be “pretext” and is an advertisement if it “ultimately leads to the promotion of goods or services.”  Applied to the fax here, the Court concluded that a “reasonable trier of fact could plausibly conclude that the fax sent to Scoma is an advertisement.”

Notably, the Court also rejected Defendants’ argument that the TCPA’s “emergency purposes” exception applied because the fax at issue provided emergency information about avoiding coronavirus exposure.  As the Court explained, the TCPA “does not contain an ’emergency purposes’ exception in the junk-fax provision.”  Simple enough.

That leaves us with the First Amendment analysis in the Court’s opinion.  Defendants argued that the junk-fax provision is a content-based restriction subject to strict scrutiny. Scoma (and the Government, as an intervenor) argued that the junk-fax provision is subject to intermediate scrutiny as a restriction on commercial speech.   The Court declined to reach the merits because “all parties” had simply assumed that the “standard of review [strict or intermediate scrutiny] is dispositive in this case”:

Either the junk-fax ban falls under strict scrutiny, or it survives under intermediate scrutiny. None of the parties envision a scenario where the junk-fax ban could survive strict scrutiny–in other words, the ban is ‘narrowly tailored to serve compelling state interests.’  The Court is not prepared to assume–without discussion–that the level of scrutiny decides the junk-fax ban’s constitutionality.

The Court allowed the Defendants to re-raise the challenge later in the case and asked the parties to address the following issues next time around:

• Can the junk-fax ban survive “strict scrutiny”? (Does it serve a “compelling interest”?)

• What compelling or substantial interest does the TCPA serve?

• Given the FCC’s broad definition of advertisement (to include faxes that do not overtly sell or promote goods), does it reach non-commercial speech?

These are important questions and we will keep an eye out for how the Court resolves them.