West Virginia Federal Court Lets TCPA Suit Move Forward Against Voice Service Providers

TCPA Connect

Adopting a broad definition of a common carrier, a West Virginia federal court declined to grant a motion to dismiss from several voice service providers in a putative Telephone Consumer Protection Act (TCPA) class action lawsuit.

The case is Mey v. All Access Telecom, Inc., et al. The named plaintiff, Diana Mey, who is well known to TCPA Connect readers as a frequent TCPA litigant, sued multiple communications service providers, alleging that they ran afoul of the TCPA by transmitting calls over their networks that contained spoofed caller ID information.

The defendants moved to dismiss on the basis that the court lacked personal jurisdiction, arguing that they did not “make” the calls at issue and were immune from liability under the statute as common carriers.

Rejecting the defendants’ arguments, U.S. District Judge for the Northern District of Virginia John Preston Bailey first found that the allegations in Mey’s complaint were sufficient to establish jurisdiction.

In TCPA cases, courts generally find that specific jurisdiction exists when a defendant makes a call or sends a message into the forum state by targeting a telephone number within the particular forum, Judge Bailey explained.

In that regard, Mey alleged that each of the defendants was paid to send calls into West Virginia, knew the calls were headed to West Virginia and knew that the calls were in fact received in West Virginia. These allegations were enough to support a finding of specific jurisdiction, Bailey said.

The allegations were also sufficient to state a claim that the defendants “made” calls for TCPA liability purposes.

Along those lines, Mey claimed that each defendant knew when the spoofed robocalls were placed through their systems, which would “light up” when the spoofer generated large numbers of spoofed calls; could easily have made simple programming changes to block the robocalls from being connected; took the steps necessary to physically place obviously spoofed robocalls to Mey and other class members; profited from the calls; and knowingly and willfully assisted the spoofers to complete the critical steps necessary to make the calls.

Drawing all reasonable inferences in Mey’s favor, the court found that the totality of the circumstances alleged supported a plausible inference that the defendants were liable.

Bailey also determined that the defendants were not immune from TCPA liability as common carriers.

“The defendants paint with too broad of a brush,” he wrote. They “have not identified any authority holding that a common carrier cannot be held liable under the TCPA—even if it has been found to have been so involved in the unlawful communications that it can be deemed to have made them. Indeed, the authority is to the contrary.”

Determining whether a given provider is a “common carrier” is an activity-based analysis that requires a court to consider the actual conduct of an entity. Mey alleged that the defendants were involved in the placement of calls—including the timing or sending of the calls, enabling the fraudulent spoofing, and assisting the spoofers in blocking caller ID—and knowingly allowed them to use the platform in violation of the TCPA.

Based on Mey’s allegations, the court could not find that the defendants were entitled to immunity as common carriers.

Finally, the court quickly rejected the defendants’ arguments that the entire TCPA was unconstitutional during the relevant calls, in light of the Supreme Court’s 2020 decision severing the government debt collector exemption in Barr v. American Association of Political Consultants, Inc.

To read the court’s order in Mey v. All Access Telecom, Inc., et al., click here.

Why it matters: The opinion provides an important warning to voice service providers about the potential for liability under the TCPA. Looking at the totality of the facts and circumstances as alleged by the plaintiff, the court rejected the defendants’ argument that there was no jurisdiction, that they did not “make” the calls at issue and should be immune as common carriers, finding the plaintiff’s allegations sufficient to survive a motion to dismiss. The decision is also another in a growing line of authority that the invalidation of the 2015 government debt collector exemption in Barr did not make the entire TCPA unconstitutional.

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