A West Virginia federal court judge denied motions to dismiss a proposed class action lawsuit against several telecommunications companies. Mey v. All Access Telecom, Inc., Civil Action No. 5:19-cv-00237-JPB (April 23, 2021).
Plaintiff filed a class action lawsuit against All Access Telecom, Inc., Bandwidth, CenturyLink, Level 3 Communications, Inteliquent and others, alleging the carriers violated the Telephone Consumers Protection Act (“TCPA”) by transmitting calls over their networks that contained spoofed Caller ID information.
Defendants Bandwidth, CenturyLink, Level 3 and Inteliquent made several arguments jointly seeking dismissal of the lawsuit. They argued they did not violate the TCPA because they merely transmitted the calls and were not sufficiently involved in making the calls. These parties also argued that the court lacked personal jurisdiction over them.
As to personal jurisdiction, the court wrote: “Each defendant was paid to send these calls into West Virginia, each knew the calls were headed to West Virginia, and the calls were in fact received in West Virginia” and, as such, they “profited from its exposure to this market and purposefully availed themselves of the privilege of conducting business here, they are answerable in West Virginia courts for their conduct in making these West Virginia calls.” The court determined that the carriers had sufficient contacts with West Virginia such that the court could exercise jurisdiction over them.
Judge Bailey next turned to the issue as to whether the TPCA could apply to the defendants’ transmission of the calls at issue. He rejected the argument that just transmitting the calls could not constitute a TCPA violation. Defendants argued the TCPA did not apply because the transmission of calls did not constitute “making” the calls as defined by the statute. Judge Bailey noted that, while the FCC has not defined the term “make,” it nevertheless stated an entity can violate the TCPA by “‘taking the steps necessary to physically place a telephone call,’ or by ‘being so involved in the placing of a specific telephone call as to be deemed to have initiated it,'” among others.
In determining whether a party violated the TCPA, the FCC requires examination of several factors, including determining the extent to which the defendant “willfully enables fraudulent spoofing of telephone numbers” by offering that functionality to customers.” Judge Bailey also focused on whether the carrier assists telemarketers by blocking Caller ID information and whether the carrier “knowingly” allowed its network to be used for unlawful purposes. The joint motion to dismiss was rejected.
One would think that, should the matter go to trial, carriers that were not the originating carrier, but only intermediate carries, may be able to prove that they did not offer Caller ID blocking technology to end users making the robocalls at issue. The situation of any originating carriers would seem to be more difficult.
While this is not a final decision imposing liability on the carriers, absent a successful motion for summary judgment after expensive discovery, the carriers face a risk at trial of an adverse verdict and/or a trip to a federal appeals court.
Looking forward, carriers, even smaller ones, may face similar lawsuits, even if filed to extort a quick settlement offer. However, one can make a good argument that a carrier (or interconnected VoIP provider) that has fully implemented STIR/SHAKEN measures in its network and adopted and enforced a rigorous robocall mitigation plan may have a good defense to a similar TCPA case. Taking those steps may well bring protection against civil liability, as well as FCC sanctions.
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 Personal jurisdiction relates to the authority that a court has to make a decision regarding the party being sued. Before a court can exercise its authority over a party, the U.S. Constitution requires that such party has certain minimum contacts with the state in which the court sits. International Shoe v Washington, 326 U.S. 310 (1945).