Just last week I reported on a double-strike out case–one in which five of six arguments made in a motion to dismiss (all of which failed) seemingly should not have been made–at least in the Czar’s opinion (ITCO).
Today I have another double strike out case. But I don’t want to focus on the quantity of arguments rejected by the court–I want to discuss the fundamental difference between 47 USC Section 227(b), on the one hand, and 227(c), on the other.
227(b) governs regulated technology. If you are using an automated telephone dialing system or a prerecorded/artificial voice to make a call you generally have to have express consent of the called party to do so (subject to a bunch of nuance and content-specific exemptions.)
227(c) on the other hand, does not look at whether or not you are using regulated technology. Rather it looks at whether you are making a telephone solicitation–lots of nuance there too–to a residential number on the national DNC list (or–maybe– an internal DNC list under 47 CFR 64.1200(d)).
One critical difference between the two sections is that regulated technology must be used to state a 227(b) violation. But even manually placed calls can violate 227(c). Stated simply: YOU CANNOT COLD CALL RESIDENTIAL NUMBERS ON THE NATIONAL DNC FOR MARKETING PURPOSES EVEN IF YOU ARE DIALING “MANUALLY.”
Pausing to break that down was definitely my good deed of the day.
Well in Starling v. J Wales Home Solutions LLC, Civil Action No. 4:21-cv-01261-O, 2022 U.S. Dist. LEXIS 71382 (N.D. Tex. April 19, 2022) the Defendant just didn’t get it. It kept arguing to the Court that the calls at issue did not violate 227(c) because an ATDS was not used to make the calls. And the Court just kept on correcting the Defendant–in fairly patient fashion:
Defendant argues that Plaintiff has failed to plead the elements of a claim under 47 U.S.C. § 227(b) because she has not alleged that Defendant used an automatic dialing system. Once again, Defendant misreads Plaintiff’s complaint which “does not assert a claim under 47 U.S.C. 227(b).” Pl.’s Resp. 9, ECF No. 15. Rather, Plaintiff asserts claims under § 227(c), which does not require the use of an automatic dialing system. See Compl. 15-17, ECF No. 1. …
[In connection with it motion to strike] Defendant continues to argue about automatic dialing systems, demonstrating once again that it misapprehends Plaintiff’s complaint.
When a federal judge is telling a Defendant that it just doesn’t understand the TCPA, that generally doesn’t bode well.
I should note the Defendant also lost arguments pertaining to the established business relationship defense and vicarious liability while the Court also found that a private right of action under Texas Business and Commerce Code. Section 305.053 because–apparently–any valid TCPA claim is also a violation of the Texas statute. All of these arguments might have gone the other way with different briefing (ITCO).
Look, I love you TCPAWorld. But when a party shows a federal court that it just doesn’t understand the TCPA in some fundamental way it is bound to lose arguments that it might have otherwise won. And that means more bad case law for the rest of us that didn’t have to be made. And–again–avoiding avoidable losses by the defense bar is why I created TCPAWorld in the first place. And it makes me feel like all my hard work is going to waste when I see cases like these.
I’m not trying to be grumpy Czar here, but I do get all melancholy and broody in my Berkeley-esque way when I see cases like this. You can cheer me back up by sharing TCPAWorld with everyone out there and encourage your counsel–especially if they’re not experienced TCPA defense lawyers–to read it. Again, it is totally free. No barriers to content. And a ton of my followers are defense lawyers at rival firms–but I never out them.