Court: Platform Providers, Software Company May Be Liable Under TCPA

TCPA Connect

A pair of platform providers and an autodialing software company must face a Telephone Consumer Protection Act (TCPA) lawsuit in West Virginia federal court after the judge determined the defendants could be liable for “knowingly” allowing their products to be used for unlawful purposes.

During Joann Hurley’s 2016 bid to be re-elected to the Wayne County Board of Education, prerecorded political robocalls were made attacking her. As a recipient of the calls, Hurley sued under the TCPA, alleging that several individual defendants used the county’s master call list to send “thousands of illegal, misleading, defamatory and false recorded telephone messages.”

Hurley also named several corporate defendants in her suit, including Fiverr, Callcentric, RingCentral and Voicent. All four defendants filed motions to dismiss. Fiverr told the court that it could not be liable under the statute because it simply provided the actors who did the voice-overs for the subject messages.

U.S. District Judge Robert C. Chambers of the Southern District of West Virginia agreed with Fiverr that Hurley’s allegations were insufficient to show it played a role in the calls sufficient to trigger liability. Fiverr did not place the calls at issue, nor did it contribute to the content, timing or manner in which the calls were made, the court said.

“Simply put, although Plaintiff has alleged facts suggesting Defendant Fiverr had some role in the recording of the content of the message, and creating the message was part of the chain of events before the call was made, there is nothing supporting a claim Defendant Fiverr was involved in initiating or placing the call,” the court said.

However, Judge Chambers reached a different conclusion with regard to platform providers Callcentric and RingCentral.

Hurley argued that the companies provided Voice-over-Internet-Protocol (VoIP) services to the individual defendants, including a phone number “to broadcast the subject illegal prerecorded messages to members of the class.” She also claimed that RingCentral and Callcentric had “direct knowledge of and the right of control over the illegal conduct” alleged in her complaint.

RingCentral and Callcentric told the court they could not be liable under the TCPA because they did not “initiate” or make the subject calls and were instead merely passive conduits.

In a 2015 order, the Federal Communications Commission (FCC) stated that initiating a telephone call can apply to either the person or entity that “take[s] the steps necessary to physically place a telephone call” or the person or entity that is “so involved in the placing of a specific telephone call as to be deemed to have initiated it.” The issue requires consideration of the totality of the facts and circumstances, the FCC said, and in the case of a platform provider, whether it “knowingly allowed [the] client(s) to use that platform for unlawful purposes[.]”

Given this interpretation, Judge Chambers declined to dismiss the defendants from the lawsuit.

“Plaintiff claims Callcentric and RingCentral are the VoIP providers and, thus, offered a calling platform for others to use,” the court said. “Additionally, Plaintiff alleges these Defendants knew about the illegal conduct, had a right to control the conduct but, nevertheless, permitted the robocalls to be broadcast through their assigned telephone numbers. Although Callcentric and RingCentral insist they were just a conduit, the Court finds these allegations, at the very least, are sufficient to state a plausible claim that Callcentric and RingCentral offered a calling platform and ‘knowingly allowed its client(s) to use that platform for unlawful purposes[.]’ Therefore, the Court denies Callcentric and RingCentral’s argument.”

A few days later, Judge Chambers similarly denied the motion to dismiss filed by Voicent, a company that provided the autodialing software for the prerecorded messages at issue.

Voicent told the court it could not be liable under the statute simply for providing autodialing software that allowed others to place telephone calls.

“However, taking the allegations in the light most favorable to Plaintiff, the Court finds they are sufficient to state a plausible claim that Voicent knowingly allowed the other Defendants to use the technology for an unlawful purpose,” the court wrote. “Ultimately, whether or not Voicent may be held liable will depend upon a totality of the circumstances analysis, which is not appropriate on a motion to dismiss given the allegations in this case. Therefore, the Court denies Voicent’s motion with respect to direct liability.”

To read the memorandum opinion and order in Hurley v. Messer on October 4, click here.

To read the memorandum opinion and order in Hurley v. Messer on October 10, click here.

Why it matters: Whether or not the platform providers and software manufacturer are ultimately held liable under the TCPA, the orders offer a cautionary tale that defendants may face an uphill battle at the motion to dismiss stage and remain mired in litigation until further along in the action. Many platform providers are not considered to be liable under the TCPA because they usually play no role in the underlying transmission, like Fiverr. This opinion shows that platform providers should not assume they are immune.