It is a truism in this great nation of ours that weapons don’t kill people, people do. So weapons manufacturers are rarely, if ever, liable for their sale—even if some remarkably high number of those weapons will eventually be used for illegal conduct. The second amendment, of course, assures that all Americans have the right to bear arms as long as they are part of a well-regulated, state-run militia. So… there.
The freedom of speech, on the other hand, is much more limited. Sure, the Constitution says Congress shall make no law abridging it—at all—but the First Amendment probably doesn’t mean what it says because…I mean… we all hate robocalls. So… there.
It’s not like the framers thought this stuff through or anything.
Getting past the satire and to the point—whereas those who enable us to enjoy our second amendment privileges rarely face the consequences for “misuse” of the “equipment” they supply, the same cannot be said of those who enable mass speech. Instead, individuals who supply autodialer and or mass-messaging services—even if requiring customers to use the equipment legally as a condition of use—still face potentially crippling liability under the TCPA when their equipment is misused.
Take, for example, the case of Cunningham v. Montes, 16-cv-761-jdp, 2019 U.S. Dist. LEXIS 74721 (W.D. Wisc. May 3, 2019). There a Defendant was personally sued for TCPA violations made by his customers—mostly local politicians—who used his website-based autodialer platform to send messages of their own creations to lists of their own targets. And, although the Plaintiff had no direct evidence that Defendant sent any of the challenged messages himself, or even knew that any of the specific messages were illegal, the Court is sending the issue to the jury to determine whether Mr. Montes will be forced to pay an extremely high price for the crimes of others using his equipment.
Here’s how it happened.
Montes provides robocalling, predictive dialing, and virtual telemarketer services to customers seeking to engage in high-volume telemarketing operations. About 70% of his clientele are politicians seeking to reach their constituents with political messages—the sort of thing that the framers probably had in mind when they assured all Americans the freedom of speech. Because of all the regulations surrounding this dangerous conduct—you know, speaking to people about politics— his customers agreed they would only use the great power he supplied responsibly. Among the promises his clients made is that they would comply with the TCPA.
Of course, some of his clients did not comply with the TCPA. Some of them even made the very basic mistake of calling repeat-TCPA Plaintiff Craig Cunningham using this platform. (Pro Tip: Do not call this guy’s number using anything that even smells like it might have been in the same room as an autodialer. Or maybe just, don’t call him at all.)
So, Craig did what Craig does and sued under the TCPA. And the Court did, what courts do, and allowed the claim against Montes to go to the jury without much evidence because… again… we hate robocalls.
In overruling the Defendant’s motion for summary judgment the court took issue with the fact that Montes sometimes helped his clients fashion their message and launch their calls when, you know, they couldn’t figure out how to do it themselves. He also did not provide any TCPA training, advice, or oversight, to his clients but that’s probably because he would have been illegally practicing law if he had. These are high crimes in TCPAWorld—robocall pushers have to be kept on a short leash after all.
True, the Defendant raised valid evidentiary points—like the point that the Plaintiff had no evidence at all. At least none that directly demonstrated Montes’ company—much less Montes himself—had actually sent any of the challenged messages. But, no matter. Again, we’re dealing with a speech dealer here so what evidence do we really need? It was enough that the Plaintiff received messages from individuals that were clients of Montes’ company—the jury could infer that the calls probably came from him. Sure, there are plenty of other similar services on the market and his contracts with his clients were non-exclusive but, I mean, he might have done it right? Send him to the jury.
And I do mean send him to the jury. After all, it is not enough to hold his company liable for the calls—no no, he must be held personally accountable. Did he actually send the messages himself? Well, I mean probably not. But, he did testify that he would sometimes, if rarely, send messages for some of his clients. And he couldn’t specifically state that he hadn’t sent the messages at issue here—sure, he just probably couldn’t perfectly recall what messages he had sent on some random days years before his deposition— but if he wasn’t prepared to outright deny involvement in someone else’s illegal robocalls, why should we spare him the (metaphorical) gallows? He might have sent some of the calls—so that’s good enough to let a jury decide his fate as to all of the calls.
a provider of auto-dialing services cannot blithely sit back and blame his customers for any TCPA violations that result from their use of his service.
So says the Court.
At bottom, this is yet another case demonstrating the massive secret expansion of the TCPA to apply not just to those who send messages but the platforms used by individuals to send those messages. This is a disturbing trend and one with substantial First Amendment dimensions. It is also strikingly unfair for individuals who offered these services believing they were perfectly legal but now facing the retroactive impact of rulings suggesting that the platform provider might, nonetheless, by liable for actions that took place years ago.
As we say in TCPAWorld, long live the First Amendment— but let those who try to exercise it be severely punished.