ARE RVM PLATFORMS SUBJECT TO SECTION 230 PROTECTIONS?: Stratics Uses Novel Strategy in Its Fight Against DOJ

So yesterday was the big conference. Absolutely amazing. Pictures and stories to follow.

For now I wanted to provide an update on the huge DOJ action against Stratics Networks.

As TCPAWorld readers know Stratics is caught up in an absolutely massive case pursued by the U.S. claiming it is liable for TSR violations by those using its popular ringless voicemail platform:

MAXIMUM PRESSURE: Stratics Networks Hit With Massive DOJ Complaint Related to RVM Use by Customers and The Heat is Really On Platforms Right Now

Well Stratics hit back in a filing asking the Court to dismiss the case arguing that it is nothing more than an “interactive computer service” that is entitled to Section 230 protection, and that is very interesting.

Backing up, Section 230–or, the law that built the internet–provides that providers of interactive computer services are not treated as the speaker or publisher of content supplied by users of those services. An obvious example is an internet chat room–do those still exist?–or whatsapp. People can say whatever dumb things they want to each other, and the platform provider is not liable for sending the message through.

Stratics is arguing that it is, in essence, no different. It too provides a passive computer service that transmits messages of its customer.

It is an interesting argument–and it perhaps has merit based upon the definitions of the statute– but it seems a bit different than the typical Section 230 application. For instance, in a typical application of the rule a consumer is in essence using or requesting the targeted platform’s services to obtain information. Here the consumer is using a different platform’s services-those of its voicemail provider–when it receives the message. So this would be a bit of a stretch.

Still, stretching is how the law is developed and you never know until you try. I think this is quite novel and I’ll be very interested to see how it turns out.

Separately Stratics argued RVMs are not “telephone calls” under the TSR to begin with. While this may seem like a tired argument, it is actually not bad. This is so because the TCPA refers only to “calls” and not “telephone calls”–and there is seemingly a difference. Helpfully for Stratics at least one portion of the TSR provides “[a] telemarketer initiates a telephone call by causing the called consumer’s telephone to ring.” And–the argument goes–a ringless voicemail does not cause the phone to ring (its right there in the name) so it cannot be a telephone call.

Like I said, not bad.

Still Stratics is facing an uphill battle here. Courts love to treat FTC TSR and FCC TCPA rules the same. It would be highly incongruous for RVM to be subject to TCPA scrutiny but not subject to TSR requirements. Then again, the law is full of such little mysteries, so why not?

You can read the entire brief here if you’re interested: Stratics_FTC_CA – ECF 50 Motion to Dismiss Complaint with MPA

And we’ll keep an eye on this.


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