TCPA Imposes Content-Based Speech Restrictions, Says Defendant’s Answer

Cherry Technologies, a payment plan company for managing dental patients’ out-of-pocket costs, “specifically denies” any Telephone Consumer Protection Act wrongdoing, said its answer Monday (docket 9:24-cv-80005) in U.S. District Court for Southern Florida in West Palm Beach to Kawa Orthodontics’ Jan. 3 class action (see 2401040001). Kawa alleges Cherry sent it and at least 40 other recipients unsolicited fax ads in mid-December trumpeting how patients could take advantage of unused dental benefits expiring at the end of the year. The faxes used “a generic advertising template suitable for mass transmission to numerous recipients,” said the complaint. But Kawa and the putative class members are barred from asserting claims in whole or in part to the extent that the faxes at issue were sent to an online fax service, virtual fax or efax and not to a physical fax machine, said Cherry’s answer. Any claim for treble damages under the TCPA is barred because Cherry didn’t engage in knowing or willful misconduct, it said. Kawa and the putative class members lack standing to bring the claims alleged in the complaint because they didn’t suffer “a concrete harm that is fairly traceable to a violation” allegedly committed by Cherry, it said. The TCPA and the regulations and rules promulgated under it violate the First Amendment, “including by imposing content-based restrictions on speech that fail to withstand strict scrutiny,” it said. To the extent Kawa contends that the TCPA restricts informational communications, its interpretation of the TCPA also violates the First Amendment, it said.