Plaintiff Lacks Standing to Bring TCPA Claims vs. Alleged Medicare Robocaller: Answer

Timothy Aguilar’s Oct. 13 complaint alleging that Network Insurance Senior Health Division (NISHD) hounded him with Medicare robocalls when he wasn’t even close to applying for benefits (see 2310200031) “fails to allege facts sufficient to state a cause of action,” said NISHD’s answer Monday (docket 4:23-cv-03988) in U.S. District Court for Southern Texas in Houston.

Aguilar’s complaint alleging violations of the Telephone Consumer Protection Act consists largely of quotes from statutes, congressional findings, websites and other unknown sources of authority, said NISHD’s answer. The facts the pro se plaintiff alleges “are conclusions, assumptions, speculation, and seemingly intermingled acts” of other defendants or unknown third parties “without any clear delineation” of what NISHD did to harm him, it said.

NISHD denies that Aguilar has stated a claim against it under the TCPA, said its answer. NISHD’s answer asserts 23 affirmative defenses against Aguilar’s allegations, including that he lacks Article III standing to bring his claims, and that “warrants dismissal” because the court “lacks proper subject matter jurisdiction over such claims.”

Aguilar fails to plead “specific, non-contradictory facts” showing any conduct attributable only to NISHD, “as opposed to third parties,” including unknown third parties, said NISHD’s answer. To establish Article III standing, Aguilar must plausibly allege that he suffered a concrete injury and that there’s “a causal connection between his injury and the conduct complained of,” it said. He also must allege his injury is capable of being redressed by a favorable decision, it said. Aguilar alleges none of that, it said.

Any damages, injury, violation or wrongdoing alleged in the complaint was caused by third parties or by Aguilar himself, for which NISHD can’t be held “vicariously liable,” said its answer. NISHD didn’t authorize, encourage or participate in any of the TCPA wrongdoing alleged in the complaint and can’t be held "liable for it,” it added.

To the extent that contractors caused any damages, injury, violations of the law or wrongdoing or engaged in the conduct alleged in the complaint, those vendors “acted outside the scope or in violation of the parties’ agreements,” said the answer. NISHD didn’t “approve of that conduct,” it said.

Aguilar’s TCPA claims “are barred to the extent they are based on regulations or rulings that exceed the FCC’s delegated authority,” said the answer. Nor can the Hobbs Act “be validly or constitutionally applied” to preclude NISHD “from raising defenses to an action arising under the TCPA,” it said.

The TCPA's regulations and rules violate the First Amendment, said the answer. That’s because the statute and its rules impose “content-based restrictions on speech that fail to withstand strict scrutiny,” it said. The application of the TCPA on which the complaint is based, including the imposition of statutory damages against NISHD, would violate the Constitution’s due process provisions, it said. Certain definitions contained in the TCPA also render the statute “unconstitutionally vague,” plus the statutory penalties that Aguilar seeks under the TCPA “are excessive,” it added.