Here’s a lesson for all platforms out there. If folks are using your service to send illegal calls–especially calls designed to erode democracy–go ahead and shut them off.
You might recall that a couple of clowns recently got his for about $5MM by the FCC for sending out robocalls that were designed to prevent certain folks from voting. I reminded everyone at the time that this is why Congress needs to regulate content and not just technology when targeting robocalls.
So on top of the FCC penalties, the New York’s AG’s office apparently wants a piece of these guys as well. It has filed a complaint against Mssrs. Wohl and Burkman claiming they violated a host of fair voting laws in sending out their voter-suppression robocalls.
Interestingly–at least I find it interesting–the AG’s office has named the platform that was used to send the robocalls–something called Message Communications, Inc.–along with its apparent owner–Robert Mahanian–as co-conspirators in its complaint.
Let me say that again.
The NY AG has named the platform used by some bad guys to send messages as a co-conspirator in their heinous(ish) scheme to undermine democracy.
Now this isn’t the first time a platform has been directly targeted in a suit claiming unsuitable robocalls were being sent –and carriers have been targeted as co-conspirators in DOJ actions in the past–but I can’t think of another instance of a platform being named in an AG action based upon the content of the messages being carried on its network.
So the platform tried to escape the complaint by arguing to the Court: i) it didn’t use an ATDS; and ii) Communications Act Section 230 protects it. But since neither of those arguments makes sense the Court refused to dismiss the complaint.
In the first place, the AG isn’t suing under the TCPA–and if it was it certainly wouldn’t be raising the ATDS issue in a case involving prerecorded calls. Rather the AG’s complaint solely raised 227(d) as a hook to argue the platform should have known about the content of messages being sent from its platform because the TCPA contains content restrictions on prerecorded calls.
Notice that the AG’s office is arguing that a platform has a duty imposed by law to review the content of messages it allows to be sent over its network. That’s really an incredible argument and one that platforms need to keep in careful mind.
Next, the Court simply couldn’t figure out what Section 230 had to do with this case. That section–much anguished over in some circles–protects operators of online message boards and so-called “social media” platforms from liability for allowing users to post outlandish lies and other brain-melting content to one another. But here the platform wasn’t just letting users brainwash other users–it was affirmatively doing to the brainwashing itself (allegedly). More pertinently it wasn’t running a message board or anything of the sort–it was serving as a platform to make robocalls.
In the end, the platform defendants are stuck in the case on the basis of their knowledge that the bad guys were using their platform to do bad things. And the fact that the platform was not, itself, the sender or creator of the content did not protect it. It was enough that the platform knew, or should have known, about the illegal conduct taking place on its network that has it stuck in the suit.
Now it should be noted that the case is still in its nascent phases–and the platform defendants may end up out of the case before all is said and done. But real important take aways here:
- Platforms should always be watching out for nefarious conduct on their networks. If they learn of something they need to do something about it. And they should never aid or assist with the transmission of messages (full stop)–especially those that might be illegal.
- Regulators and AGs are not afraid to go after platforms in addition to the actual senders of messages.
- This stuff is scary and you should read the case–or have your counsel read it for you: Nat’l Coalition v. Wohl, 20 Civ. 8668 (VM), 2021 U.S. Dist. LEXIS 177589 (S.D.N.Y. September 17, 2021).
Keep your head up TCPAWorld.