Did the NRA Just Take Down the TCPA? CRITICAL New Ruling Holds Facebook Requires “Use” of R&SNG and Not Just Capacity

Editor’s Note: It was just pointed out to me by a reader that the Judge issuing this opinion– the Hon. Lance E. Walker, was actually himself a member of the NRA until his membership lapsed according to his responses to public questions for the record. Obviously I do not imply any bias or wrongdoing–being a former member of an organization does not necessarily mean that you are biased for or against that organization– but this is an interesting little wrinkle that I figured I’d share with you folks. Read more here: Questions for the Record

Love ’em or hate ’em the NRA has a reputation for fighting hard. And they may have just scored the first big hit on the TCPA post-Facebook, (although it looks like they did it by accident.)

In McEwen v. Nra of Am. & Infocision, No. 2:20-cv-00153-LEN, 2021 U.S. Dist. LEXISUnited (D. Me. April 14, 2021) the Plaintiff alleged that the NRA continued calling him after he asked for calls to stop. This is true although his phone number was on the National DNC and–he alleged–that he had never provided consent to receive calls from the organization to begin with.

While you might expect the NRA to argue that “autodialers don’t robocall people, people do” the co-defendant that sent the message actually urged only that the NRA was allowed to make the calls at issue because it is a tax exempt organization. More on that below.

Despite the failure of the Defendants to address the ATDS issue, the Court took it upon itself to review the Plaintiff’s ATDS allegations for sufficiency following the Facebook ruling, and this is dynamite stuff.

First, here’s how the Court frames the issue:

After the Duguid opinion, the ATDS portion of the claim requires an allegation that [Defendant] used a random or sequential number generator to place a call to Plaintiff’s cellphone, not merely a claim that its dialing system has that capability. 

Woah nelly!

This is huge, obviously. The biggest lingering question post-Facebook was what role “capacity” would have in the analysis of whether equipment is an ATDS and the first Court to address the issue has now suggested that the answer is “none.”

But the Court does not dismiss the claim because the Defendant simply missed the issue–or chose not to raise it pre-certification (which I respect). A reluctant court allowed the claim to stand as a result: “For obvious reasons I am concerned whether Plaintiff’s allegations state a personal claim and whether Plaintiff has standing to pursue a claim on behalf of the prospective class. However, these concerns will need to await further proceedings because the motion before the Court does not press it, even though the concerns are acknowledged in the parties’ papers.”

As great as the opinion was on ATDS issues, however, it was a real downer for anyone that wants to make ready use of the TCPA’s nonprofit exemptions.

While not focusing on ATDS issues, the defendant in the suit moved to dismiss contending that the NRA was allowed to make calls without consent because its a non-profit organization.

But the Plaintiff in the suit noted that the NRA does enjoy 501(c)(4) tax exempt status but alleged that the NRA is not a “nonprofit organization” under the TCPA because it “exists, chiefly, ‘to make money for its leaders,’ who allegedly have diverted ‘tens of millions of dollars for their personal use,’ and who receive ‘grossly excessive salaries and bonuses,’ resulting in civil litigation instituted by the State of New York ‘to dissolve the NRA under New York laws governing nonprofit corporations.'”

The Court found that– in light of these allegations– whether or not the NRA is really a non-profit is a “question of fact.” A fact finder will need to determine whether:

[the] NRA is, in fact, a “nonprofit organization” entitled to engage in telemarketing without fear of liability based on its alleged disregard of the rules governing do-not-call
registries.

So make a note–just because your organization is tax-exempt does NOT mean it is a non-profit for TCPA purposes.

Nonetheless, the Court held that offering a membership in an organization–such as the NRA–is NOT marketing, so claims based on telephone solicitations by the NRA were dismissed.

The Court also questions (but does not decide) whether the FCC had the authority to extent the protections of the DNC to residential cell phones as opposed to landlines as the text of the TCPA appears to provide. Really interesting stuff.

But the big news, of course is the ATDS ruling that the NRA never actually asked for. Sometimes you hit a target you never even aim at, right? (Unrelated, did I mention the judge issuing the ruling was appointed by Trump? Probably just a coincidence.)

In any event, remember that another Court has already allowed ATDS allegation to survive the pleadings stage relying on “capacity” allegations– so let’s continue to take it slow TCPAWorld and not get too excited. The “capacity” issue can still come back to haunt us.

But TCPA defendants should definitely keep this one in their back pocket. Presumably, next to their glock. (I couldn’t resist.)

We’ll keep an eye on this.

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