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.