“NOT SO”: Court Reminds Everyone that TCPA’s ATDS Rules Apply Regardless of Whether Calls Are Sent for Political or Non-Commercial Reasons

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Although it is getting increasingly rare, every once in a while a TCPA defendant will make a completely off the wall argument like “the TCPA’s ATDS rules don’t apply to me because I’m not making marketing calls” or the like.

When that happens I have to remind everyone yes the TCPA’s ATDS rules do apply to you (unless your name is Uncle Sam or one of the 50 state Aunts, who are exempt.)

In Laccinole v. Students for Life Action, 2022 WL 3099211 (D. R.I. August 4, 2022), for instance, the defense argued the TCPA did not apply to it because it was not sending commercial messages.

“Not so.” Quipped the court:

Not so. ATDS provisions apply more broadly than solicitor-specific provisions; the relevant TCPA sections read “it shall be unlawful for any person,” 47 U.S.C. § 227 (b)(1)(A), and “no person or entity may … initiate any telephone call … using an automated telephone dialing system.” 47 C.F.R. § 64.1200(a)(1) (emphasis added). Contrast these with other TCPA provisions, all of which contain specific language about “telephone solicitors.” Thus, because Plaintiff plausibly pleads that Defendants used an ATDS, and because the provisions are not specific to solicitation, the Court denies Defendants’ Motion for Judgment on the Pleadings for Counts I, II, and XIV.

Important to keep in mind.

I should also note that Laccinole represents yet another example of a TCPA ATDS case making it past the pleadings stage. This continues an unfortunate post-Facebook trend.

Oh and check out this great footnote giving some love to my big win in Stoops:

After discovery, this claim may hold water. See Defs.’ Mot. J. Pleadings 21-22. In Stoops v. Wells Fargo Bank, N.A., the Western District of Pennsylvania granted summary judgment for the defendant in part because “[p]laintiff had admitted [at deposition] that she files TCPA actions as a business.” 197 F.Supp.3d 782, 798 (W.D. Pa. 2016). Because that plaintiff’s “only purpose in using her cell phones is to file TCPA lawsuits,” the text messages did not “affect the privacy rights that the TCPA is intended to protect.” Id. at 800 (internal citations omitted.) Here, although perhaps Mr. Laccinole is doing the same, this is a question best answered – as it was in Stoops – after discovery.

Not everyday a Court helps a Defendant out this much. Hopefully they listen and execute as the Court has suggested.

Happy Friday TCPAWorld.

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Published by Eric J. Troutman

The Czar of TCPAWorld Eric Troutman is one of the country’s prominent class action defense lawyers and is nationally recognized in Telephone Consumer Protection Act (TCPA) litigation and compliance. He has served as lead defense counsel in more than 70 national TCPA class actions and has litigated nearly a thousand individual TCPA cases in his role as national strategic litigation counsel for major banks and finance companies. He also helps industry participants build TCPA-compliant processes, policies, and systems. Eric has built a national litigation practice based upon deep experience, rigorous analysis and extraordinary responsiveness. Eric and his team feel equally at home litigating multibillion dollar telecommunications class actions in federal court as they do developing and executing national litigation strategies for institutions facing an onslaught of individual TCPA matters. They thrive in each of these roles – delivering consistently excellent results – while never losing sight of the client experience. While many firms now tout TCPA expertise, Eric has been there from the beginning. He built one of the country’s first TCPA-only defense teams and began serving as national TCPA counsel for his clients nearly a decade ago. This perspective allows him to swiftly develop the right litigation strategies for dealing with recurring problems, without wasting time on tactics that are bound to fail. Eric’s rich historical perspective and encyclopedic knowledge of the TCPA landscape also make him an invaluable resource to institutional compliance teams struggling to comply with the shifting regulatory landscape. No task is too small – or too big. Indeed, Eric and his team have helped build TCPA-compliant systems and processes for some of the largest and most complex corporate entities in the country. He commonly works with in-house compliance counsel to build and implement enterprise and business-line specific TCPA solutions, performs TCPA audits and drafts and reviews proposed TCPA policies and procedures. He and his team also have the technical expertise necessary to assist call centers seeking to develop TCPA-resistant call path architecture or to modify existing telephony and software integration to better insulate from potential TCPA exposure. Eric has built a reputation for thought leadership. An avid blogger and speaker, he has been at the forefront of the industry’s effort to push for clarity and a return to sanity for the TCPA for years. He was selected to advocate for the financial services industry on important TCPA issues before the Federal Communications Commission and co-authored the nation’s only comprehensive practice guide on TCPA defense. In his spare time, Eric leads defense teams representing banks and other financial services companies in consumer finance litigation matters. He has experience representing clients in UCC, TILA, RESPA FCRA, CCRA, CLRA, FDCPA, RFDCPA and FCCPA claims, as well as in fraud and bank operations issues.

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