When I think of Arizona, I think of not only of it quite literally being red, but I also think of Arizona as being conservative/Republican – or in other words, “red.” Well, despite this, the Republican National Committee was hit with a TCPA class action there. Howard v. Arizona, No. 2:23-cv-00993-SPL.
But of course, this is not the first time a Republican organization has been sued under the TCPA in a “red state.” If you recall, another Republican organization was sued in Alabama of all places last year.
Here, the RNC was sued for sending prerecorded messages without prior express written consent because the texts received by the plaintiff contained an automatically downloaded video. The plaintiff claims this video constitutes of a prerecorded message since the voice in it is prerecorded. Fair enough.
But, here is what is even more interesting…
The plaintiff sued under 47 U.S.C. § 227(b)(1)(A) and 47 U.S.C. § 227(b)(1)(B). Title 47 U.S.C. § 227(b)(1)(A) makes it a violation of the TCPA to make “any call (other than a call made for emergency purposes or made with the prior express consent of the called party) using . . . an artificial or prerecorded voice … to any telephone number assigned to a … cellular telephone service ….”
Whereas, 47 U.S.C. § 227(b)(1)(B) makes it a violation of the TCPA for “any telephone call to any residential telephone line [to use] an artificial or prerecorded voice to deliver a message without the prior express consent of the called party . . . .”
See the potential problem here?
My predication, not legal advice, is that the Court strikes one of these counts for being redundant as the Massachusetts court did in Jones v. Experian Info. Sols., No. CV 14-10218-GAO, 2016 WL 3945094, at *9 (D. Mass. July 19, 2016). In Jones, the two counts under (b)(1)(A) and (b)(1)(B) were seen as redundant since the claims did not “allege a different set of unlawful actions that would support separate counts.”
We will continue to keep an eye on this case to see what happens here.
Looked at the complaint and agree that it appears that Count 2 is redundant of Count 1. But, perhaps this was done because the plaintiff may utilize his cell phone as his residential phone, and does not want one of the sleezy TCPA defense attorneys to claim that his cell phone is not a cell phone but is a residential phone, or vice versa. Agreed that one count or the other will not make it to the final end. But, FRCP 8(d) does allow for alternative claims even if inconsistent with each other. Sorry that it is the RNC that is the defendant. Rather see it being the DNC that violated the DNC.