Case 1:21-cv-23011-MD Document 74 Entered on FLSD Docket 09/15/2022 Page 1 of 18
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` UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF FLORIDA
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`Case No. 21-cv-23011-DAMIAN
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`Plaintiff,
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`ALEJANDRO BORGES, individually,
`and on behalf of all others similarly situated,
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`vs.
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`SMILEDIRECTCLUB, LLC,
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`Defendant.
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`________________________________________/
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`
`ORDER DENYING DEFENDANT’S
`MOTION TO DISMISS CLASS ACTION COMPLAINT [ECF NO. 4]
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`THIS CAUSE is before the Court on Defendant, SmileDirectClub, LLC’s
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`(“Defendant”), Motion to Dismiss Class Action Complaint, filed August 19, 2021, (the
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`“Motion to Dismiss”). [ECF No. 4].1
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`THE COURT has carefully considered the Motion to Dismiss, the parties’
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`memoranda [ECF Nos. 18, 21, 41, and 43], the notices of supplemental authority and
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`responses thereto [ECF Nos. 44–48, 53, 55–56, 67, and 69–71], the supplemental briefing
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`ordered by the Court [ECF Nos. 65 and 66], the pertinent portions of the record, and relevant
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`legal authorities. The Court also heard from the parties, through counsel, at hearings held
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`January 18, 2022, and March 21, 2022, and is otherwise fully advised in the premises. For the
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`reasons set forth below, the Motion to Dismiss [ECF No. 4] is denied.
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`1 This matter is referred to the undersigned pursuant to the Parties’ Consent to Proceed Before
`United States Magistrate Judge, [ECF No. 58], and Order Referring Case to Magistrate
`Judge. See ECF No. 59.
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`Case 1:21-cv-23011-MD Document 74 Entered on FLSD Docket 09/15/2022 Page 2 of 18
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`I.
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`BACKGROUND
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`Plaintiff, Alejandro Borges (“Plaintiff”), brought this class action pursuant to the
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`Florida Telephone Solicitation Act (“FTSA”), Section 501.059, et seq., Florida Statutes
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`(2021), as amended by Senate Bill No. 1120, a subsection of Florida’s Consumer Protection
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`laws. See ECF No. 1-3 (“Complaint”) at ¶ 1. Plaintiff alleges Defendant is an international
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`orthodontic device company that specializes in teeth alignment products and offers its
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`products to consumers online. Id. at ¶ 2. To promote its products and services, Defendant
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`engages in telephonic sales calls to consumers without securing their prior express written
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`consent as required by the FTSA. Id. at ¶ 3.
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`According to the allegations in the Complaint, on or about July 13, 2021, and July 19,
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`2021, Defendant sent two unsolicited text messages2 promoting orthodontic consumer goods
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`or services to Plaintiff’s cellular telephone number. Id. at ¶¶ 11–12. Defendant allegedly sent
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`similar unsolicited text messages to other individuals residing in Florida who did not consent
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`to receive text messages from Defendant. Id. at ¶¶ 13, 32. Plaintiff alleges that in sending these
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`unsolicited, unconsented to texts, Defendant used “a computer software system that
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`automatically selected and dialed Plaintiff’s and the Class members’ telephone numbers.” Id.
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`at ¶¶ 15, 34. Plaintiff also alleges that neither he nor the Class members gave Defendant prior
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`express written consent to send the text messages promoting Defendant’s business in such
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`manner. Id. at ¶¶ 16, 32. According to Plaintiff, Defendant’s actions allegedly caused Plaintiff
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`and the Class members harm, including violations of their statutory rights, annoyance,
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`nuisance, and invasion of their privacy. Id. at ¶ 4.
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`2 Section 501.059(1)(j) defines telephonic sales calls to include text messages.
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`Based on these allegations, on July 20, 2021, Plaintiff filed a one-count Complaint in
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`the Circuit Court of the Eleventh Judicial Circuit in and for Miami-Dade County, Florida,
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`alleging Defendant “made and/or knowingly allowed telephonic sales calls to be made
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`utilizing an automated system for the selection or dialing of telephone numbers” without
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`obtaining Plaintiff’s and the Class members’ prior express written consent in violation of the
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`FTSA. Id. at ¶¶ 33–34. Pursuant to Section 501.059(10)(a) of the FTSA, Plaintiff, on behalf
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`of the Class members and himself, seeks statutory damages and an injunction enjoining
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`Defendant from making further telephonic sales calls without obtaining the called party’s
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`prior express written consent. Id. at ¶¶ 5, 35.
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`On August 18, 2021, Defendant removed the action to this Court pursuant to the Class
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`Action Fairness Act, 28 U.S.C. § 1332(d). [ECF No. 1]. The following day, on August 19,
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`2021, Defendant filed the Motion to Dismiss now before this Court challenging the FTSA as
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`unconstitutional. [ECF No. 4]. On October 25, 2021, pursuant to 28 U.S.C. § 2403(b) and
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`Federal Rule of Civil Procedure 5.1(b), this Court certified to the Attorney General of the
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`State of Florida that the constitutionality of Section 501.59(8)(a) of the FTSA had been
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`challenged, and the Attorney General declined to respond within the sixty-day period
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`required by the certification. [ECF No. 39].
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`In the Motion to Dismiss, Defendant argues that the FTSA is unconstitutional for two
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`reasons: (1) it violates the First Amendment to the United States Constitution (and Florida’s
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`free speech guarantee) as an unconstitutional content-based restriction on speech (i.e., the
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`statute singles out telephonic sales calls); and (2) it violates the Due Process Clause of the
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`Fourteenth Amendment (and Florida’s due process guarantee) because it fails to define what
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`constitutes an “automated system for the selection or dialing of telephone numbers,” thereby
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`making it unconstitutionally vague regarding the type of equipment or system that is
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`prohibited under the statute. Motion to Dismiss at 3–4.3
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`II.
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`APPLICABLE LEGAL STANDARDS
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`To adequately plead a claim for relief, Federal Rule of Civil Procedure 8(a)(2) requires
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`“a short and plain statement of the claim showing that the pleader is entitled to relief,” in
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`order to “give the defendant fair notice of what the plaintiff’s claim is and the grounds upon
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`which it rests.” Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512 (2002) (quoting Conley v. Gibson,
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`355 U.S. 41, 47 (1957)). Federal Rule of Civil Procedure 12(b)(6) provides that a defendant
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`may move to dismiss a complaint based on the plaintiff’s “failure to state a claim upon which
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`relief can be granted.” Fed. R. Civ. P. 12(b)(6). To survive a motion to dismiss under Rule
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`12(b)(6), a plaintiff must present “enough facts to state a claim for relief that is plausible on
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`its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). While Rule 12(b)(6) does not
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`permit dismissal of a well-pled complaint simply because “actual proof of those facts is
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`improbable,” the “[f]actual allegations must be enough to raise a right to relief above the
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`speculative level.” Id.
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`When ruling on a motion under Rule 12(b)(6), a court must “view the complaint in
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`the light most favorable to the plaintiff and accept all of the plaintiff’s well-pleaded facts as
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`true.” Ziyadat v. Diamondrock Hosp. Co., 3 F.4th 1291, 1296 (11th Cir. 2021). Still, the court
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`need not take allegations as true if they are merely “[t]hreadbare recitals of the elements of a
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`cause of action, supported by mere conclusory statements . . . .” Ashcroft v. Iqbal, 556 U.S. 662,
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`678 (2009) (citing Twombly, 550 U.S. at 555). Additionally, “a district court weighing a
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`3 The pagination of the Motion cited herein corresponds to that shown on the top right-hand
`corner created by the Court’s CM/ECF filing system.
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`motion to dismiss asks not whether a plaintiff will ultimately prevail but whether the claimant
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`is entitled to offer evidence to support the claims.” Twombly, 550 U.S. at 563 n.8 (citation and
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`internal quotations omitted). “Dismissal pursuant to Rule 12(b)(6) is not appropriate ‘unless
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`it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim
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`which would entitle him to relief.” Magluta v. Samples, 375 F.3d 1269, 1273 (11th Cir. 2004)
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`(quoting Conley, 355 U.S. at 45–46).
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`III. DISCUSSION
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`Although Defendant moves to dismiss the Complaint pursuant to Rule 12(b)(6),
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`Defendant neither contests the sufficiency of the factual allegations nor the plausibility of the
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`claims as alleged in the Complaint. Rather, in the Motion to Dismiss, Defendant asserts
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`constitutional challenges to Section 8(a) of the FTSA and argues that it runs afoul of the First
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`Amendment, as an unconstitutional content-based restriction on speech, and the Due Process
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`Clause of the Fourteenth Amendment, as unconstitutionally vague. Motion to Dismiss at 3–
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`4.
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`A. The FTSA
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`As noted in the Motion to Dismiss, the FTSA attracted little attention since its
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`enactment in 1987 until the Florida legislature added a private right of action in 2021. Id. at
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`5. For many of the same reasons that Congress enacted the federal Telephone Consumer
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`Protection Act (“TCPA”) in 1991, the Florida legislature introduced CS/SB 1120 to address
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`several concerns raised by consumers regarding unsolicited, automated telephone calls. See
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`Barr v. Am. Ass’n of Political Consultants, Inc., 140 S. Ct. 2335, 2344 (2020) (noting the TCPA
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`“responded to a torrent of vociferous consumer complaints about intrusive robocalls”); see also
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`The Florida Senate, Bill Analysis And Fiscal Impact Statement, S.B. 1120, at 2 (Apr. 19,
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`2021) (“Consumers are often inundated with unwanted calls. In fiscal year 2020, the Federal
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`Trade Commission . . . received 293,071 complaints from Florida consumers about unwanted
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`telephone calls.”). The Florida bill updated Section 501.059 of the FTSA by creating a new
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`private right of action for consumers which went into effect on July 1, 2021. Fla. Stat. §
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`501.059(10)(a).
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`Consequently, the FTSA now requires all solicitors making sales telephone calls, text
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`messages, and voicemail transmissions with an automated system that is capable of either
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`selecting or dialing the recipient’s telephone number to have the recipient’s prior express
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`written consent. Id. at § 501.059(8)(a). Specifically, Section 8(a) of the FTSA provides:
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`A person may not make or knowingly allow a telephonic sales call to be made
`if such call involves an automated system for the selection or dialing of
`telephone numbers or the playing of a recorded message when a connection is
`completed to a number called without the prior express written consent of the
`called party.
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`Id. at § 501.059(8)(a).4
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`4 The terms “telephonic sales call” and “prior express written consent” are defined under the
`statute as follows:
`“Telephonic sales call” means a telephone call, text message, or voicemail
`transmission to a consumer for the purpose of soliciting a sale of any consumer
`goods or services, soliciting an extension of credit for consumer goods or
`services, or obtaining information that will or may be used for the direct
`solicitation of a sale of consumer goods or services or an extension of credit for
`such purposes.
`Fla. Stat. § 501.059(1)(j).
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`*
`*
`*
`“Prior express written consent” means an agreement in writing that:
`1. Bears the signature of the called party;
`2. Clearly authorizes the person making or allowing the placement of a
`telephonic sales call, text message, or voicemail transmission to deliver
`or cause to be delivered to the called party a telephonic sales call using
`an automated system for the selection or dialing of telephone numbers,
`the playing of a recorded message when a connection is completed to a
`number called, or the transmission of a prerecorded voicemail;
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`Aggrieved parties can bring an action to enjoin violations of Section 8(a) and recover
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`actual damages or $500 per violation, whichever is greater. Id. at § 501.059(10)(a).
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`Additionally, a court may triple these damages if the underlying violation is willful or
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`knowing. Id. at § 501.059(10)(b).
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`With the foregoing statutory framework in mind, the Court first considers whether
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`Plaintiff has alleged sufficient facts to state a claim for relief under the FTSA. Twombly, 550
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`U.S. at 555.
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`B. Plaintiff Has Stated A Claim Under The FTSA.
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`To assert an FTSA claim, a plaintiff must allege a person made or knowingly allowed
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`“a telephonic sales call to be made if such call involves an automated system for the selection
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`or dialing of telephone numbers . . . without the prior express written consent of the called
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`party.” Fla. Stat. § 501.059(8)(a) (hereinafter, “Section 8(a) of the FTSA” or the “Autodialer
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`Provision”). At the motion to dismiss stage, the Court’s task is to determine ‘not whether a
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`plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support
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`the claims.’” Twombly, 550 U.S. at 563 n.8.
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`3. Includes the telephone number to which the signatory authorizes a
`telephonic sales call to be delivered; and
`4. Includes a clear and conspicuous disclosure informing the called party
`that:
`a. By executing the agreement, the called party authorizes the
`person making or allowing the placement of a telephonic sales
`call to deliver or cause to be delivered a telephonic sales call to
`the called party using an automated system for the selection or
`dialing of telephone numbers or the playing of a recorded
`message when a connection is completed to a number called; and
`b. He or she is not required to directly or indirectly sign the written
`agreement or to agree to enter into such an agreement as a
`condition of purchasing any property, goods, or services.
`Id. at § 501.059(1)(g).
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`As noted above, although Defendant moves to dismiss the Complaint pursuant to Rule
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`12(b)(6), Defendant does not contest the sufficiency of the factual allegations or the
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`plausibility of the claims in Plaintiff’s Complaint. See generally Motion to Dismiss. And, taking
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`the well-pled allegations in the Complaint as true, the Court finds that Plaintiff has sufficiently
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`alleged Defendant violated the autodialer provision of the FTSA by using an “automated
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`system” to send the unsolicited and unconsented to text messages at issue. See Complaint at
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`¶¶ 29–34. Defendant instead avers that Section 8(a) of the FTSA violates the First and
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`Fourteenth Amendments to the United States Constitution, as well as the free speech and due
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`process guarantees under the Florida Constitution. See Motion to Dismiss at 3–4. Thus, the
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`Court turns to Defendant’s constitutional challenges.
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`C. The FTSA Does Not Violate The First Amendment.
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`Defendant first argues that Section 8(a) of the FTSA violates the First Amendment.
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`Specifically, Defendant asserts the statute imposes a content-based restriction, as it subjects
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`only “telephonic sales calls” to the FTSA’s regulations. Id. at 6–8. Defendant further argues
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`that because it is a content-based restriction on speech, the FTSA is subject to the very high
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`standard of strict scrutiny. Id. at 9–10. Strict scrutiny requires a law to be “narrowly tailored
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`to serve compelling state interests.” Reed v. Town of Gilbert, Ariz., 576 U.S. 155, 163 (2015).
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`Plaintiff responds that since the FTSA only restricts commercial speech, it is subject to
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`the less stringent standard of intermediate scrutiny. Response at 3–7. To satisfy the
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`intermediate scrutiny standard, a statute or regulation must be “narrowly drawn” to “directly
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`and materially advance” a “substantial [government] interest.” Florida Bar v. Went For It, Inc.,
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`515 U.S. 618, 624 (1995) (quoting Central Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n of N.Y.,
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`447 U.S. 557, 564–65 (1980)).
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`1. The FTSA Is Subject To Intermediate Scrutiny.
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`Generally, “[a] content-neutral regulation of expressive conduct is subject to
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`intermediate scrutiny, while a regulation based on the content of the expression must
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`withstand the additional rigors of strict scrutiny.” NetChoice, LLC v. Att’y Gen., State of Fla., 34
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`F.4th 1196, 1223 (11th Cir. 2022) (citing Fort Lauderdale Food Not Bombs v. City of Fort
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`Lauderdale, 11 F.4th 1266, 1291 (11th Cir. 2021)). However, the general rule that content-
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`based restrictions on speech trigger strict scrutiny is not absolute. Dana’s R.R. Supply v. Att’y
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`Gen., Fla., 807 F.3d 1235, 1246 (11th Cir. 2015). “Content-based restrictions on certain
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`categories of speech such as commercial and professional speech, though still protected under
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`the First Amendment, are given more leeway because of the robustness of the speech and the
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`greater need for regulatory flexibility in those areas.” Id. With respect to these categories of
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`speech, a court’s inquiry is “the more flexible, yet still searching, standard of intermediate
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`scrutiny.” Id. (citing Central Hudson, 447 U.S. at 564). Under intermediate scrutiny,
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`“‘restrictions directed at commerce or conduct’ may be upheld—assuming they further a
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`substantial government interest and are narrowly tailored—even if they ‘impos[e] incidental
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`burdens on speech.’” Id. (quoting Sorrell v. IMS Health, Inc., 564 U.S. 552, 563–64 (2011)).
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`Commercial speech is defined as an “expression related solely to the economic
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`interests of the speaker and its audience.” Central Hudson, 447 U.S. at 561. The “core notion”
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`of commercial speech extends to speech that proposes a commercial transaction. Bolger v.
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`Youngs Drug Prods. Corp., 463 U.S. 60, 65–66 (1983). The law is clear that commercial speech
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`is afforded lesser protections than those traditionally given to noncommercial speech. FF
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`Cosmetics FL, Inc. v. City of Miami Beach, 866 F.3d 1290, 1298 (11th Cir. 2017). The party
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`seeking to uphold a restriction on commercial speech carries the burden of justifying it. Bolger,
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`463 U.S. at 71 n.20 (citing Central Hudson, 447 U.S. at 570).
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`Here, although the parties agree the FTSA restricts commercial speech, they disagree
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`on what level of scrutiny—intermediate v. strict—applies. See Motion to Dismiss at 7–10;
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`Response at 2–7. Defendant argues that Section 8(a) of the FTSA is subject to strict scrutiny
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`because it singles out a specific type of commercial speech—telephonic sales calls—and
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`subjects only these calls to the FTSA’s regulations, while all other types of calls (e.g.,
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`informational and debt collection calls) are not restricted by the FTSA’s autodialer provision.
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`Motion to Dismiss at 6–8. But, as the Eleventh Circuit recently specified in analyzing a
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`different Florida statute5 in the First Amendment context, the fact that a statutory provision
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`targets only a specific subset or type of speech (here, solicitation calls) “isn’t enough to subject
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`the entire law to strict scrutiny or per se invalidation.” NetChoice, 34 F.4th at 1225. Rather, the
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`appellate court explained, although “the First Amendment mandates strict scrutiny for any
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`speech regulation that applies to one medium (or a subset thereof) but not others: ‘Heightened
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`scrutiny is unwarranted when the differential treatment is justified by some special
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`characteristic of the particular medium being regulated.’” Id. (quoting Turner Broad. Sys., Inc.
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`v. F.C.C., 512 U.S. 622, 660–61 (1994)). As applied in the instant case, the NetChoice decision
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`instructs that although the FTSA’s autodialer provision applies only to telephonic sales calls,
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`it is not necessary to subject the law to strict scrutiny because Section 8(a) of the FTSA
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`regulates only commercial speech.
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`5 In NetChoice, the Eleventh Circuit analyzed the constitutionality of S.B. 7072—a new Florida
`law aimed at restricting large social media platforms’ ability to engage in content moderation
`decisions. 34 F.4th at 1205.
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`The Eleventh Circuit has not addressed the FTSA within the context of a First
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`Amendment challenge, and there are scant decisions from federal district courts that have
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`done so. However, at least one court in this District has analyzed similar constitutional
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`challenges to the statute. See Turizo v. Subway Franchisee Advert. Fund Tr. Ltd., No. 21-cv-6149,
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`2022 WL 2919260 (S.D. Fla. May 18, 2022) (Ruiz, J.). In Turizo, the plaintiff brought a similar
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`class action under the FTSA alleging the defendant had violated the FTSA’s autodialer
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`provision by using an “automated system” to transmit unsolicited text messages advertising
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`Subway restaurant deals. Id. at *1–2. Like Defendant here, the defendant in Turizo asserted
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`constitutional challenges to the FTSA. Id. at *2. The District Court held that the statute is
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`subject to intermediate scrutiny because it regulates commercial speech, and the court found
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`that the FTSA’s autodialer provision “does not represent an unconstitutional restriction on .
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`. . commercial speech” and that the statute “is narrowly drawn to advance a substantial
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`government interest.” Id. at *9–11. In Pariseau v. Built USA, LLC, a court in the Middle District
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`of Florida likewise held that Section 8(a) of the FTSA is subject to intermediate scrutiny on
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`the same grounds. No. 21-cv-2902, 2022 WL 3139243 (M.D. Fla. Aug. 5, 2022) (Merryday,
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`J.).
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`In Turizo, the parties disagreed on whether the Supreme Court’s decisions in Reed and
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`Barr altered the traditional application of intermediate scrutiny for analyzing regulations on
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`commercial speech. The parties in the instant case have the same disagreement. See Motion
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`to Dismiss at 7–10; Response at 5–7; Reply at 3.
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`In Reed, the Supreme Court found that a municipality’s sign code constituted a
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`content-based speech restriction because it treated categories of signs differently based on the
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`type of information conveyed. 576 U.S. at 163–65. The Reed Court held the municipality’s
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`sign code failed strict scrutiny. Id. at 171–73. In so ruling, the Supreme Court explained that
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`“[g]overnment regulation of speech is content based if a law applies to particular speech
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`because of the topic discussed or the idea or message expressed.” Id. (citing Sorrell, 564 U.S.
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`at 563–64). Similarly, in Barr, the Supreme Court invalidated the government-debt exception
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`to the TCPA’s regulations because it “impermissibly favored debt-collection speech over
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`political and other speech, in violation of the First Amendment.” 140 S. Ct. at 2343. The Barr
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`Court found the government-debt exception unconstitutional because it could not withstand
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`strict scrutiny and severed it from the remainder of the statute. Id. at 2347, 2355.
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`Defendant argues that the Supreme Court’s decisions in Reed and Barr compel the
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`application of strict scrutiny here. Motion to Dismiss at 6–10. However, as Judge Ruiz found
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`in Turizo, the Supreme Court did not explicitly address the issue of content-based restrictions
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`on commercial speech in either Reed or Barr. Turizo, 2022 WL 2919260, at *10; see also
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`Pariseau, 2022 WL 3139243, at *4–5. Indeed, the plurality decision in Barr specifically
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`cautioned: “Our decision is not intended to expand existing First Amendment doctrine or to
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`otherwise affect traditional or ordinary economic regulation of commercial activity.” 140 S.
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`Ct. at 2347. This Court agrees that the Reed and Barr decisions did not alter the existing rule
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`that restrictions on commercial speech are subject to intermediate scrutiny.
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`This Court observes that Eleventh Circuit precedent consistently applies intermediate
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`scrutiny when analyzing regulations on commercial speech, even where the appellate court
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`determined that “the regulations at issue were speaker focused and content based.” Ocheesee
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`Creamery LLC v. Putnam, 851 F.3d 1228, 1235 n.7 (11th Cir. 2017); see also Dana’s R.R. Supply,
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`807 F.3d at 1246 (“Content-based restrictions on certain categories of speech such as
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`commercial and professional speech, though still protected under the First Amendment, are
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`given more leeway because of the robustness of the speech and the greater need for regulatory
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`flexibility in those areas.” (citing Central Hudson, 447 U.S. at 564)); accord Woods v. Santander
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`Consumer USA Inc., No. 14-cv-02104, 2017 WL 1178003, at *2 (N.D. Ala. Mar. 30, 2017)
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`(“Even where commercial speech is content-based, courts apply intermediate scrutiny.”).
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`Based on the foregoing, this Court finds that Section 8(a) of the FTSA is subject to
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`intermediate scrutiny because it restricts commercial speech, despite the statute’s imposition
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`of content-based regulations on such commercial speech.
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`2. Section 8(a) Of The FTSA Survives Intermediate Scrutiny.
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`A restriction on commercial speech survives First Amendment intermediate scrutiny
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`if (1) the speech is not misleading and does not concern unlawful activity, (2) the regulation
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`serves a substantial government interest, (3) the regulation directly advances the asserted
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`government interest, and (4) the regulation is not more extensive than is necessary to serve
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`that interest. FF Cosmetics, 866 F.3d at 1298 (quoting Central Hudson, 447 U.S. at 566).
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`The parties do not dispute that the commercial speech at issue (telephonic sales calls)
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`is neither misleading nor related to unlawful activity. The next consideration, then, is whether
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`Section 8(a) of the FTSA serves a substantial government interest. Central Hudson, 447 U.S.
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`at 563–64 (“The State must assert a substantial interest to be achieved by restrictions on
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`commercial speech.”). Plaintiff, who carries the burden of justifying the restriction on
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`Defendant’s commercial speech, asserts that “residential privacy and tranquility” are
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`“significant governmental interests.” Response at 8. Pointing to the legislative history of the
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`FTSA, Plaintiff emphasizes that the Florida legislature amended the FTSA to “combat
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`unwanted prerecorded and autodialed calls that had resulted in 293,071 complaints from
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`Florida consumers in 2020 alone.” Id.
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`Case 1:21-cv-23011-MD Document 74 Entered on FLSD Docket 09/15/2022 Page 14 of 18
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`This Court agrees that consumer privacy protection is a well-recognized substantial
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`government interest. See Turizo, 2022 WL 2919260, at *10 (citing Barr, 140 S. Ct. at 2348
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`(recognizing “the credibility of Congress’s continuing interest in protecting consumer
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`privacy”); Schaevitz v. Braman Hyundai, Inc., 437 F. Supp. 3d 1237, 1253–54 (S.D. Fla. 2019)
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`(concluding consumer privacy protection is a “compelling government interest”); Wreyford v.
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`Citizens for Transp. Mobility, Inc., 957 F. Supp. 2d 1378, 1380 (N.D. Ga. 2013) (“[T]he
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`government has a significant interest in protecting users of cellular telephones from invasions
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`of privacy, nuisance, and uninvited costs.”)).
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`The next consideration is whether the challenged regulatory technique under the
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`FTSA directly advances the asserted government interest. Plaintiff argues that the Florida
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`legislature amended the FTSA to reduce unwanted sales calls to consumers in response to
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`consumer complaints. Response at 8–9; Surreply at 2. This Court agrees that Section 8(a) of
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`the FTSA advances the public interest in protecting consumer privacy by limiting the use of
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`autodialing equipment which has the ability to greatly increase the number of unwanted calls,
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`including automated calls or “robocalls.” See Turizo, 2022 WL 2919260, at *10 (“[W]ith the
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`knowledge that autodialers greatly increase the speed and efficiency with which solicitors can
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`connect to called parties, the Florida Legislature implemented limitations on the permissible
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`use of autodialing equipment.”).
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`Lastly, the Court considers whether Section 8(a) of the FTSA is “narrowly drawn” to
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`be a valid restriction on commercial speech under the First Amendment. Went For It, 515 U.S.
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`at 624. Notably, “the ‘least restrictive means’ test has no role in the commercial speech
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`context.” Id. at 632. Rather, a court must determine whether there is a “fit” between the
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`government’s interests and the means chosen to advance those interests:
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`Case 1:21-cv-23011-MD Document 74 Entered on FLSD Docket 09/15/2022 Page 15 of 18
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`a fit that is not necessarily perfect, but reasonable; that represents not
`necessarily the single best disposition but one whose scope is in proportion to
`the interest served, that employs not necessarily the least restrictive means but
`. . . a means narrowly tailored to achieve the desired objective. Within those
`bounds we leave it to governmental decisionmakers to judge what manner of
`regulation may best be employed.
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`FF Cosmetics, 866 F.3d at 1299 (quoting Bd. of Trs. of State Univ. of N.Y. v. Fox, 492 U.S. 469,
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`480 (1989)). As the Turizo Court noted, Section 8(a) of the FTSA “is narrowly drawn because
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`while limiting the use of autodialers, it does not outright prohibit them. Nor does the
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`autodialer provision prohibit [all] unsolicited telephone calls.” 2022 WL 2919260, at *11.
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`Indeed, the FTSA leaves open alternative channels for communication such as “unsolicited
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`live calls, consented-to autodialed calls, and unsolicited mail and email advertisements.” Id.
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`This Court agrees that Section 8(a) of the FTSA does not outright prohibit all unsolicited sales
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`calls nor the use of autodialers but is instead narrowly drawn to advance a substantial
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`government interest. Therefore, the Court finds the statute’s restriction on commercial speech
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`is narrowly tailored to advance the significant government interest in reducing unwanted sales
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`calls and, as such, survives intermediate scrutiny.
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`Defendant asserts that the FTSA’s “prior express written consent” requirement is still
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`more extensive than necessary and that the State failed to consider less restrictive alternatives
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`(i.e., do-not-call lists or opt-out requirements). See Reply at 7–8; ECF No. 66, at 3. However,
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`although the regulation may not be the least restrictive means for advancing the State’s
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`interests, as noted above, “the ‘least restrictive means’ test has no role in the commercial
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`speech context.” Went For It, 515 U.S. at 632. The Eleventh Circuit has upheld “prohibitions
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`on commercial speech despite the availability of potentially less-restrictive alternatives.” FF
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`Cosmetics, 866 F.3d at 1300 (citing cases). Here, because Section 8(a) is narrowly drawn to
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`Case 1:21-cv-23011-MD Document 74 Entered on FLSD Docket 09/15/2022 Page 16 of 18
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`advance the State’s interests, even if some alternative or less restrictive means for advancing
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`those interests may be available, the statute nevertheless survives intermediate scrutiny.
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`Accordingly, the Court finds Section 8(a) of the FTSA does not violate the First
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`Amendment.
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`D. Section (8)(a) Of The FTSA Is Not Unconstitutionally Vague.
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`
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`Defendant next challenges Section 8(a) of the FTSA as unconstitutionally vague and
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`contends the statute’s failure to define the term “automated system for the selection or dialing
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`of telephone numbers” is an “unsurmountable due process problem.” Motion to Dismiss at
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`16–17. According to Defendant, the use of such vague language to describe the equipment
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`prohibited by the regulation is unconstitutional and unduly chills protected speech. Id. at 18.
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`Defendant further asserts that the FTSA’s broad use of the term “automated system for the
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`selection or dialing of telephone numbers” opens the door to arbitrary and discriminatory
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`application of the law in violation of the Due Process Clause. Id. at 22.
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`To assert a successful facial challenge based on vagueness, Defendant “must establish
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`that no set of circumstances exist under which the [statute or regulation] would be valid.”
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`Horton v. City of St. Augustine, Fla., 272 F.3d 1318, 1329 (11th Cir. 2001) (quoting United States
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`v. Salerno, 481 U.S. 739, 745 (1987)). “The fact that a [statute or regulation] might operate
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`unc