So today did not go the way it was supposed to go. Like, not at all.
Nonetheless I didn’t want to leave my loyal TCPAWorld readers totally contentless today– I know how you all hate that.
I’ve been sitting on this story for a little while because the last time I reported on a Todd Bank case, well…it lead to this.
Nonetheless, this is an important enough ruling that we’re going to have to dive in (after hours) and hope I can avoid a repeat misadventure.
One of the (many many many) interesting nuances about the TCPA that caught my eye from the start is the different language animating a claim under 47 USC 227(b)(1)(A) and (b)(1)(B).
Under (b)(1)(A) it is illegal to MAKE a call using an ATDS or a prerecorded/artificial voice.
Under (b)(1)(B) it is illegal to INITIATE a call using an prerecorded/artificial voice.
So what’s the difference between “make” and “initiate” when it comes to phone calls?
Well, one hot take is that (b)(1)(B)’s use of the word “initiate” means to literally play a recording at the start of a call. Some Courts have found just that, actually. Yet the FCC has provided a very thorough discussion of what the word “initiate” means in this context–and it has nothing to do with playing something at the start of a call. Instead it means to take the steps necessary to launch the call in the first place–and can include a huge number of behaviors ranging from actually loading lists of numbers to merely “encouraging” someone else to engage in certain behavior.
In a sentence, a person is the “initiator” of a call if they are “so involved” with the making of the call that they can be fairly said to have initiated it. (And if that feels circular to you, it is.)
Viewed through this lens, the word “initiate” is broader than the word “make.” So whereas doing pretty much anything that leads to an attempted call may trigger (b)(1)(B), (b)(1)(A) covers only a narrower category of conduct–that which constitutes the actual “making” of a call.
For years I’ve been arguing that this distinction has to mean something. That the use of different language means Congress intended different definitions to be applied. And that since “initiate” means–in essence–to “attempt” a call, the word “make” must mean to successfully complete the act of calling. I.e. attempted calls are actionable under (b)(1)(B) but only calls that actually connect (or texts that are actually delivered) trigger (b)(1)(A).
In large measure the caselaw is not in agreement with me–at least not yet. Courts have shown little–really no–interest in defining these terms or in exploring the difference between the two words.
And that just stinks.
But now, and long last, it appears a Court has picked up on this distinction, and the practical impact is just as fascinating as I predicted.
In Bank v. Dorfman, 18-CV-6457 (MKB) (ST), 2021 U.S. Dist. LEXIS 249734 (E.D.N.Y. December 21, 2021) the Court refused to enter a default judgment against corporate officers who had not appeared in the case. Although the Court concluded that corporate officers can be held liable for the actions of companies that violate the TCPA–the most unfair rule in the law–it refused to hold these officers liable because they were not alleged to have directly “made” the calls at issue.
And that’s where the distinction between “initiate” and “made” became so critical.
The Court recognized that the officers were alleged to have done things that might fairly be characterized as “initiating” the calls–such as creating scripts to be used for the challenged text messages–the allegations were not sufficient to meet the higher bar necessary to “make” such calls.
In the Court’s view, a corporate officer does not “make” a text that violates the statute unless she or he has a “direct, personal participation in the operation of the ATDS that sent the text message.”
So default judgment denied. (Well, technically, this was a magistrate judge’s ruling to the Court ruled that it recommends judgment be denied.)
Keep in mind the distinction between the language in these two subsections. It likely has additional practical applications but as the Bank case shows it can be dynamite in protecting corporate officers.