Getting automated voicemails on your cellphone from the local school district even though you have no children and have told the district to STOP? Solution – bring a Telephone Consumer Protection Act (TCPA) action arguing that even such informational calls to cellphones violate the statute where there is no prior express consent.
That was the course of action followed by a frustrated Mr. Alphonso Clark in Alphonso Clark v. Buffalo City School District, 2021 U.S. Dist. LEXIS 235897, United States District Court for the Western District of New York, October 28, 2021. However, in the end Judge John L. Sinatra found school was out for Mr. Clark’s TCPA cause of action.
The Court agreed with the defendant that the school district was not a “person” covered by the TCPA. Judge Sinatra noted that the statutory definition in 47 U.S.C. §153(39) includes “an individual, partnership, association, joint-stock company, trust or corporation.” The Mr. Clark countered that the term “includes” is “not exclusive of entities like the District.”
The Court agreed the term “includes” is “generally a term of enlargement and not limitation,” but in the end ‘connotes simply an illustrative application of the general principle.’” Judge Sinatra noted the “traditional canon of construction” (I will spare you the Latin nomenclature) holds that “a word is given more precise content by the neighboring words with which it is associated.” The term “person” is defined “solely by reference to private, non-governmental entities” and the words following “includes” are “illustrative” of a “person” for TCPA purposes. Therefore, “while the list is not exhaustive, it indicates that the meaning of ‘person’ here is limited to private, non-governmental entities.” So class dismissed on Mr. Clark’s TCPA cause of action.
Looks like Plaintiff’s attorneys missed the fact that 47 CFR 64.1200 (a) reads “No person or entity may:” and violations of the CFR are encompassed in the private right of action under the TCPA. They did reference the CFR in the complaint, so they could have brought it up in the response to the MTD or have amended the complaint. Wonder how the appeal will go.