There is nothing the Czar likes less than bad legal briefing in TCPA cases.
So there is nothing I enjoy more than watching a small-time pro per who knows the TCPA–a guy like Brandon Callier, let’s say– crush a fancy law firm that doesn’t.
In Callier v. Turning Point USA, Inc. 2023 WL 2668010 (W.D. Texas March 28, 2023) Callier sued something called “Turning Point” for allegedly sending five text messages to his cellphone without consent using an ATDS.
Now anyone familiar with the structure of the TCPA can size this claim up immediately. The fact that “Turning Point”–whatever that is–claims to be a non-profit is irrelevant. So too, the fact that the cellular phone might be residential is also irrelevant. The prohibitions of the TCPA respecting the use of an ATDS to contact a cell phone apply regardless of those factors.
But Turning Point’s counsel, apparently, didn’t know that. And thus began their rather humbling educational experience at the hands of Mr. Callier.
Turning Point moved to dismiss Callier’s claim arguing that they are exempt from the TCPA because they are a non-profit. But as I just laid out that is not even remotely close to true.
Apparently, however, Turning Point pressed the argument so forcefully that the Court had to lay out the entire TCPA to Turning Point to explain why they were wrong. (Indeed, if you ever want a quick overview of how the TCPA works–from the regulated technology provisions, to the landline provisions, to the DNC provisions–this ruling gives a really nice roadmap.)
Suffices to say Turning Point lost on the issue. The Court correctly found that Defendant’s status as a non-profit has precisely zero impact on the application of the regulated technology provisions of the TCPA.
Turning Point also urged that Callier’s claim failed because his cell phone wasn’t a “residential” line but, here again, an education was required:
Whether Plaintiff’s cell phone qualifies as a residential phone is irrelevant. Again, Plaintiff is not asserting a claim under TCPA § 227(b)(1)(B), which regulates telephone calls “using an artificial or prerecorded voice” to “residential telephone line[s].” Compare 47 U.S.C. § 227(b)(1)(B) (emphasis added), with Compl. Nor is Plaintiff asserting a claim under 47 C.F.R. § 64.1200(c), which regulates “telephone solicitation[s]” to “residential telephone subscribers.” Compare 47 C.F.R. § 64.1200(c) (emphasis added), with Compl. Instead, Plaintiff is exclusively relying on TCPA § 227(b)(1)(A), which applies to “telephone number[s] assigned to a … cellular telephone service” irrespective of whether that cell hone also serves as the recipient’s residential phone. See 47 U.S.C. § 227(b)(1)(A); Compl. at 3. Thus, it doesn’t matter whether Plaintiff’s cell phone would qualify as a “residential telephone line” under TCPA § 227(b)(1)(B), or whether Plaintiff is a “residential telephone subscriber” under 47 C.F.R. § 64.1200(c). The exceptions Defendant invokes apply exclusively to statutory and regulatory provisions under which Plaintiff isn’t asserting a claim, so those exceptions don’t defeat Plaintiff’s cause of action. See Harrison, 2017 WL 3671301, at *3 (S.D. Tex. Aug. 2, 2017); see also supra Sections II.B.1–2.
I know to many of you this reads like looking at the Matrix, but to me this is all crystal clear. Indeed, it makes me chuckle that the Court felt it had to explain things so slowly…
Callier demonstrates, yet again, while the TCPAWorld is so dangerous. If you do not have vast experience in this world you are going to get taken to school– even by a guy without a lawyer. And that’s just plain embarrassing.
Sure Callier’s best day in court in this one will net him about $7,500.00. But he has already forced Turning Point to incur more than in fees and now he’s demonstrated to the Court (and others) that a class action might be possible here since Turning Point apparently thought its conduct was legal for reasons that really don’t pass muster. Eesh.
Then again, Callier’s ATDS allegations are highly suspect–which is probably what TP (a different TP this time) should have challenged in the first place.
Stay educated–and out of trouble–TCPAWorld!