Since its Holy Week I figured we’d dive into transcendental philosophy for a spell and recount the recent story of a “prophet” who spreads his message using mass-blasted pre-recorded calls and text messages.
Talk about a higher “calling.” Ha.
Actually, in truth this story is more about the communication platform provider that enabled the “prophet’s” messages and the Earthly “rewards” that it may now be set to receive by virtue of the TCPA.
So there’s this guy who thinks he’s a prophet and everyone wants to hear from him. No, I am not talking about myself—although you definitely need to tune into our big TCPA/privacy COVID 19 webinar Thursday—I am referring to a guy named Yakim Manasseh Jordan who, either out of sincerity or otherwise, has spent years (allegedly) mass blasting people with (spiritual?) messages using texts and prerecorded voice messages.
The most recent bevy of pre-recorded messages (allegedly) provide:
The Lord spoke to me personally about you. I must speak to you. I’m going to pass the phone to my blessed assistant and he’s [going to] give you my blessed number so that you can call me back so that you can hear this blessed word.
Hey, why not? The Lord works in mysterious ways, and all that,
There were also a series of text messages (allegedly) sent without Earthly-consent reading:
GOD is Exposing those that are for you and against you, ALL for YOUR GOOD Listen Click Prophetmanasseh4u.com
To make these entreaties more compelling, the good “prophet” turned to Ytel—a communication platform that wound up a defendant in the suit—to assist it with a shortcode, and “local touch” phone numbers allowing Jordan to send messages from phone numbers in the call recipient’s area code. (The Plaintiff and the Court refer to this practice as “spoofing,” although I have my doubts.) As the Plaintiff tells matters, Ytel also “directly participates in executing and calling texting campaigns by bypassing carrier filtering and using deceptive calling tactics.”
Obviously, whatever riches might await Jordan in the hereafter for his hard work, using pre-recorded voice messages and text messages to automatically blast folks with unconsented content is going to violate the secular doctrines of the TCPA, and a mighty big statutory penalty seems likely to await the ministry. Unfortunately, the platform of Jordon’s choosing—Ytel— appears to be along for the ride as well.
In De La Cabada v. Ytel, Inc., Case No. 19-cv-07178-JSC, 2020 U.S. Dist. LEXIS 4143 (N.D. Cal. March 10, 2020), Ytel moved to dismiss the TCPA claims against it arising from the prophetic conduct of its customer. In Ytel’s view of the world, it did not write the messages or control Jordon’s conduct, so it cannot possibly be liable for his conduct.
The Court finds things to be much more nuanced. Relying on a recent FCC ruling, the Court identifies several factors that need to be considered to assess whether a platform might be liable for the messages it carries. Those factors include: (1) who creates the content of the messages; (2) who decides “whether, when or to whom” a message is sent; (3) “the extent to which a person willfully enables fraudulent spoofing of telephone numbers or assists telemarketers in blocking Caller ID, by offering either functionality to clients”; and (4) “whether a person who offers a calling platform service for the use of others has knowingly allowed its client(s) to use that platform for unlawful purposes.” See 2015 FCC Declaratory Ruling, 30 FCC Rcd. at 7980-81.
After acknowledging that Ytel did not write any of the “blessed” scripts used by Jordon, the Court nonetheless would not release Ytel from the bonds of its responsibility in the suit. As the Court views matters, Ytel allegedly provided “random selections of numbers for bulk purchase” allowing Jordon to “place multiple phone calls, each from a different number, to avoid built-in phone number blocking systems,” and “[e]ven if a consumer blocks one phone number, calls can continue unabated from hundreds of other numbers.” In other words, because “Ytel provided MJM hundreds of local phone numbers in order to place pre-recorded calls” the Court found that Ytel provided material support in Jordon’s effort to evade call blocking apps and algorithms.
Perhaps, standing alone, supplying a large block of numbers to a caller is no big deal—but this is no ordinary caller. As the Plaintiff alleges, Jordon has been sued 16 times, resulting in at least one default judgment against his ministry. He was also (allegedly) cited by the FCC for TCPA violations before the calls at issue in this suit took place. And, in a fascinating twist, the Court noted Ytel’s advertising materials promote that its “in-house carrier compliance team works directly with our customers to ensure they’re sending messages and running campaigns that are compliant and within the standards set by the FTC and TCPA.” In the Court’s view, Ytel’s professed love of TCPA compliance allowed an inference that it should have/did know exactly who Jordon was and that it was, therefore, knowingly assisting him in his mass-blast ministry.
From those two facts alone—Ytel’s supplying of phone numbers to Jordon and its presumed knowledge of the operation of Jordon’s tele-ministry—the Court concludes Ytel might be directly responsible for initiating the calls at issue: “the totality of the allegations support a plausible inference that Ytel was aware of MJM’s repeated TCPA violations and nonetheless continued to facilitate them by offering MJM Ytel’s platform, including with spoofing and call blocking functionality.”
The Court also flat rejected Ytel’s argument that because it is a “common carrier” it somehow cannot be liable for TCPA violations. As the Court points out, carriers can be liable for traffic on their networks where there is “a high degree of involvement or actual notice of an illegal use and failure to take steps to prevent such transmissions.”
De La Cabada is a fascinating read and the background facts are sure to put a grin on your face, but the lesson here is clear and quite important—courts continue to hold platform providers liable for messages sent using their systems where the carrier/platform is viewed as helping the caller evade call blocking tools and has knowledge that illegal conduct is afoot. This is true even where there is no true control over the conduct of the caller and the messages are being written—and ultimately sent— solely by the caller.
Verily, I say unto you, that we’ll keep an eye on this one.