UPDATED WITH HACKER STUFF: Mind-Melting Decision Proves a Dialer Can Never Be Too Old to be An ATDS

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Since there is absolutely nothing else going on today I figured I’d share one of the weirdest TCPA cases I’ve seen recently.

So apparently some guy in Nebraska named Mort who really doesn’t like a gas station called Bucky’s Gas Station. He hates it so much, in fact, that he has created a stark raving mad loony-toons (my opinion) gripes board on the internet to assail it. You can visit it, if you’d like, but be warned that your brain will melt a little: www.buckysgasstationsucks.com.

I spent more time than I’d care to admit reviewing the website last night but I can’t quite figure out where the beef originated. (If you can figure it out let me know, as I am actually genuinely curious.)

So Bucky’s Gas Station is owned by a guy named Buchanan— who I will assume goes by Bucky whether he wants to or not—and his wife who have allegedly been subjected to years of abuse at the hands of Mort using something called a FaxTel 2000, which is something directly out of a 90s era Simpsons. Apparently Mort revs up his FaxTel 2000 and blasts Bucky and his wife with unwanted messages from time to time, just to make sure Bucky remembers how much Mort dislikes him.

Not stopping there, Mort also—allegedly—encourages members of the public to blast poor Bucky with calls “day and night” and to do the same with his associates and neighbors, many of whose contact information is listed on the brain-melting website. As the order tersely words it: “[Mort] encourages members of the public to contact the Buchanans, their neighbors, and others they are affiliated with; and notes that the Buchanans and others will be contacted daily and nightly regarding Sullivan’s grievances.”

Since I don’t actually know why Mort is so agitated by Bucky I can’t say that his conduct is totally inappropriate. I mean, maybe Bucky threw Mort’s puppy in a microwave or something. But either way the conduct of blasting someone’s cell phone with unwanted messages is illegal—if an ATDS is used.

And here’s where things finally get interesting in this yawner of a case.

The Plaintiff alleged that FaxTel 2000 is an autodialer because, I mean, look at the thing.

But Mort had a clever response—this device is so old and beaten up that it can no longer dial randomly and sequentially, plus no replacement parts are available so it lacks the capacity to dial that way in the future either. So it can’t possibly meet the TCPA’s ATDS definition.

I mean, its kind of a brilliant argument if you think about it (and your mind has melted a little.)

Unfortunately for Mort, however, the case was decided at the pleadings stage and the Court simply could not accept Mort’s assertions on the FaxTel’s dialing capacity as those “facts” were outside the pleadings. Instead the Court had to accept Bucky’s claim that the dialer had all the needed functionality to behave as an ATDS.

Undeterred, Mort also argued that the TCPA infringed on his First Amendment rights but—as readers of my Halloween column know—the Constitution won’t save you in TCPAWorld.

*Insert left-over evil laugh from Halloween bargain bin here*

Mort finished his motion to dismiss with a claim that the TCPA only applies to telemarketing harassment, not good-ole-fashioned harassment harassment. No dice. The Court looks at the words of the statute and cannot find the “I just want to abuse people out of spite” TCPA exemption.

On the other hand, and somewhat amusingly, the Court refused to enter a preliminary injunction prohibiting Mort’s conduct finding that it wanted more information and evidence before doing so. Under the circumstances of this case one might have thought ordering one party to temporarily stop blasting the other with robocalls would have been pretty perfunctory. But I guess the Court also wants to know about the condition of Mort’s puppies before ordering him to stop FaxTeling Bucky.

The case is Buchanan v. Sullivan, 8:20-CV-301, 2020 U.S. Dist. LEXIS 202519 (D. Ne. October 30, 2020).

And now you may return to your low-anxiety and worry free Tuesday.

Hey, look at that bird outside.

UPDATE: 11/3/2020 at 2:24 pm pacific

So I apparently have a new team of hackers that work for me– Czar of TCPAWorld and Czar of the Hackers?– and they think they’ve uncovered what happened here. Below is an exchange from a hacker news message board, because that’s how I roll now:

ear7h 49 minutes ago [–]

If anyone is curious about the why:

  Mort Sullivan's Personal Opinion That
  McDonald's Is Located In The Area, And
  Would You Like To Eat Food With Ambient
  Air In The Area Of Surrounding Properties,
  And We Will Putting Up Signs & Asbestos Tape
  Around McDonald's On The Sullivan Trust Property,
  Where The Manager Called The Police On Mort Sullivan
  For Cutting The Grass On The Sullivan Trust Property, And
  Everyone Can See The Picture Below Showing Area!

If I understand this correctly, the McDonalds manager called the cops on Mort and then Mort fired back by filing a suit regarding lead and asbestos on the area. I’m not sure how Bucky got involved though.

paxswill 22 minutes ago [–]

I think reading from the bottom will give you the chronological order. Also, skipping over phrases like, “Mort Sullivan’s Personal Opinion That…” helps a lot (that phrase, along with registering himself as an LLC is giving me strong sovcit vibes).As to what actually started this, it looks like there was a landfill with alleged hazmat in it, but there wasn’t a lawsuit filed in time (under the Clean Water Act? Because there’s an underground stream that flows into the Missouri River?) to make the original polluters clean it up. Mort believes that because Bucky’s, the McDonalds, and other companies (see the expanding list of real estate developers on his list) are now developing the area (and digging basements into the landfill) the timer for a Clean Water Act lawsuit has restarted. He cares as his property is next to the former landfill.

jcranmer 10 minutes ago [–]

That’s generally my gist as well, although I’m not certain on the actual existence of the landfill, let alone what may or may not have been dumped into it.