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

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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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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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