427 F.Supp.3d 1034
W.D. Mo.2019Background
- Plaintiff Andy Doohan brought a putative class action under the TCPA alleging unsolicited promotional text messages (2014–2018) sent to Missouri phone numbers via the SendSmart and Txt Live! systems.
- Defendants: CTB Investors, LLC d/b/a PBR Big Sky Cowboy Bar (Missouri); The Cordish Companies, Inc. (Maryland); Entertainment Consulting International, LLC (ECI) (Maryland). Plaintiff alleged Cordish and ECI directed or oversaw PBR’s marketing and the texting programs.
- Claims: (1) §227(b)(1)(A)(iii) — use of an ATDS to send texts without consent; (2) §227(c) / 47 C.F.R. §64.1200(d) — failure to maintain adequate do-not-call/anti-telemarketing procedures.
- Defendants moved to dismiss for lack of personal jurisdiction (ECI, Cordish) and on the merits, arguing several TCPA provisions are unconstitutional (government-debt exemption, government-speaker and non-profit exemptions, ATDS vagueness) and not severable. The U.S. Attorney General intervened to defend the TCPA.
- Court denied the motion: found a prima facie showing of specific personal jurisdiction over ECI and Cordish and rejected the constitutional and vagueness challenges (severed the government-debt exception rather than invalidating the whole statute).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Personal jurisdiction over ECI and Cordish | Doohan: ECI and Cordish purposefully directed marketing into Missouri (registration, KC employees, contracts, emails, coordination of SendSmart/Txt Live!), so specific jurisdiction is proper. | ECI/Cordish: headquartered in Maryland; no direct sending in Missouri; contacts insufficient or passive. | Court: Plaintiff made a prima facie showing of minimum contacts; specific jurisdiction over both defendants was proper; 12(b)(2) denied. |
| Government-debt exception (ATDS) — First Amendment | Plaintiff: TCPA valid; enforcement should proceed. | Defendants: exemption is content-based (permits government-debt calls) and thus fails strict scrutiny; entire ATDS regime should be invalidated if exemption not severable. | Court: Exception is content-based and fails strict scrutiny, but it is severable from the TCPA; remedy is severance, not wholesale invalidation; dismissal denied. |
| Government-speaker exemption — First Amendment | Plaintiff: TCPA applies; government exemptions not at issue. | Defendants: excluding government speakers is an impermissible speaker/content preference requiring strict scrutiny. | Court: The statutory definition of "person" and sovereign immunity do not create a content-based speaker preference; if anything, intermediate scrutiny/time-place-manner review applies and the exemption is constitutional. Dismissal denied. |
| Non-profit exemption (telephone solicitation / do-not-call) | Plaintiff: TCPA targets commercial telemarketing; non-profit carve-out is lawful and aimed at relationship/expectation differences. | Defendants: exemption favors certain speakers; content/viewpoint discrimination. | Court: Exemption is content-neutral (targets commercial speech); survives Central Hudson / intermediate scrutiny as tailored to residential-privacy and anti-fraud interests. Dismissal denied. |
| ATDS vagueness (Fifth Amendment) | Plaintiff: statutory terms give fair notice; alleged systems fit the ATDS definition (stored lists and automated dialing). | Defendants: definition fails to give ordinary persons notice; post-ACA ambiguity among courts shows vagueness. | Court: ATDS definition not unconstitutionally vague; ambiguous applications do not amount to void-for-vagueness here; dismissal denied. |
Key Cases Cited
- Reed v. Town of Gilbert, 135 S. Ct. 2218 (2015) (establishes content-based speech analysis and strict scrutiny framework)
- Duguid v. Facebook, Inc., 926 F.3d 1146 (9th Cir. 2019) (held TCPA government-debt exception content-based and applied Reed; severability discussion)
- Am. Ass'n of Political Consultants, Inc. v. FCC, 923 F.3d 159 (4th Cir. 2019) (held debt-collection exemption content-based and addressed severability)
- ACA Int'l v. FCC, 885 F.3d 687 (D.C. Cir. 2018) (vacated FCC’s expansive ATDS interpretation creating regulatory uncertainty)
- Burger King Corp. v. Rudzewicz, 471 U.S. 462 (1985) (minimum contacts and foreseeability for personal jurisdiction)
- Van Bergen v. State of Minn., 59 F.3d 1541 (8th Cir. 1995) (analysis of exemptions and time/place/manner intermediate scrutiny for autodialer statutes)
- Central Hudson Gas & Elec. Corp. v. Pub. Serv. Comm'n, 447 U.S. 557 (1980) (four-part test for commercial-speech regulation)
- Kirkeby v. Furness, 92 F.3d 655 (8th Cir. 1996) (discusses residential privacy as a substantial — but not necessarily compelling — interest)
- Regan v. Time, Inc., 468 U.S. 641 (1984) (severability presumption where the remainder of statute can operate independently)
- Alaska Airlines, Inc. v. Brock, 480 U.S. 678 (1987) (severability clause supports presumption in favor of severing invalid provisions)