LOCAL GOVERNMENTS TCPA EXEMPT?: Court Dismisses City of Albuquerque from TCPA Suit– Declines to Answer Critical Question of Government Liability

Amongst the various open questions out there in TCPAWorld is whether government entities can be held liable in TCPA suits.

There are several prongs to this. First, is the general “sovereign immunity” issue. Second, is the TCPA’s limited definition of the term “person.” Third, is the FCC’s various–and at times, inconsistent–proclamations on the subject.

I don’t have time to break all of this down for you this morning–but I have in the past–but it suffices to say uncertainty continues to lurk on the subject.

For instance in Silver v. City of Albuquerque, 2023 WL 2413780, No. 1:22-cv-00400 MIS/GBW (D. N.M.  March 8, 2023) the court struggled with the issue and ultimately refused to weigh in on it.

In silver the City argued in a motion to dismiss that the TCPA simply does not apply to it because it is a government entity and not a “person” under the TCPA. Plaintiff countered that the FCC has held local governments are subject to the statute, to which the City responded the FCC’s ruling should not be followed as it flies in the face of the plain language of the TCPA.

The Silver court refused to address this issue, expressly punting on it.

Instead the Court found the messages at issue–invitations to join townhall discussions about he pandemic– fall within the TCPA’s emergency exemption.  As the Court frames the issue “[t]he emergency purposes exception is intended for situations in which the use of prerecorded message calls could ‘speed the dissemination of information’ to the public regarding hazardous conditions.” And “the emergency purpose exception is interpreted broadly.”

The Court was persuaded that the “prerecorded calls were not only made during the pandemic, but they were necessitated by the fact that the pandemic required information to be communicated remotely.”

The Court goes on to deliver this zinger: “Given the broad interpretation of the emergency purposes exception—and in the context of the early pandemic—the Court finds that announcing socially distanced town halls during a worldwide pandemic is at least as urgent as announcing a snow day.”

Ha. Nice.

So the Silver case gives us a pretty nice and broad interpretation of the emergency purposes exemption to keep in mind, but does not answer the question of whether a City can be used for a TCPA violation. Another interesting one for you TCPAWorld.

Happy Thursday!



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