Last week, the U.S. District Court for the Southern District of California, located in the 9th Circuit, dropped a landmark ruling in U.S. v. Stratics Networks, Inc., declaring Stratics’ ringless voicemail software platform solution to be outside the purview of the Federal Trade Commission’s (“FTC”) Telecommunications Sales Rule or “TSR,” as it’s commonly referred. The ruling also directly addresses the definition of a “telephone call” in the context of the TSR, which prohibits misleading or abusive telemarketing practices.
The court has unequivocally categorized ringless voicemails as “telephone calls” for TSR purposes, adopting a broader interpretation of the term. The court supported this classification by aligning ringless voicemail with traditional voicemail’s functionality, noting the common practice of leaving voicemails and the conventional method of accessing voicemails via a telephone, despite emerging alternative practices.
On the crucial front of Section 230 of the Communications Decency Act, the court sided with Stratics, affirming that the company’s platform acts merely as a facilitator for third-party communications, not as a creator of content, thus warranting immunity from civil liabilities. This decision underscores the platform’s role akin to social media entities, which enable user interaction without directly engaging in content creation.
Key points of the court’s analysis included:
- Technological Evolution: The court’s attempt to reconcile the evolving nature of digital communications with longstanding legal definitions signifies an effort to adapt legal frameworks to contemporary modes of communication.
- The Content-Conduct Divide: While Stratics’ platform was used to disseminate content that could potentially violate TSR guidelines, the court recognized that holding Stratics accountable would necessitate content moderation that Section 230 aims to circumvent.
The ruling emphasizes the differentiation of liability between platform providers and individual content creators or marketers. It implies that while the platforms may be shielded under Section 230, the creators of content might still bear the brunt of regulatory compliance and the associated risks, especially when the violation of rules is content-based.
This judgment bears significant influence for not just ringless voicemail providers but potentially for all platforms that rely on user-generated content. However, it also sends a cautionary signal to entities involved in content creation that might use these platforms, as they remain susceptible to the TSR’s expanded scope.
The court’s stance has a dual implication: it ensures a safe harbor for tech platforms under the TSR, akin to their status under the TCPA, but it also affirms the broadening reach of telemarketing regulations.
Given this intricate legal scenario, we advise all our clients to carefully assess their use of communication technologies in marketing and other customer interactions. For those seeking to navigate this landscape or understand how this ruling may impact your current practices, our team is at the forefront, ready to provide expert advice and strategic planning tailored to your needs.
The CommLaw Group Can Help!
Given the complexity and evolving nature of the FCC’s rules, regulations and industry policies & procedures around Robocall/Robotext Mitigation and Compliance issues (e.g., STIR/SHAKEN, TRACED Act, FCC & FTC Rules & Regulations, US Telecom Industry group, ATIS, NECA, VoIP Numbering Waivers, Know Your Upstream Provider and the private sector ecosystem), as well as the increased risk of business disputes, consumer protection enforcement by state attorneys general, and even civil litigation, and anticipating the potential torrent of client questions and concerns, The CommLaw Group formed a “Robocall Mitigation Response Team” to help clients (old and new) tackle their unique responsibilities.
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Jonathan S. Marashlian – Tel: 703-714-1313 / E-mail: jsm@CommLawGroup.com
Michael Donahue — Tel: 703-714-1319 / E-mail: mpd@CommLawGroup.com
Rob Jackson – Tel: 703-714-1316 / E-mail: rhj@CommLawGroup.com
Ron Quirk – Tel: 703-714-1305 / E-mail: req@CommLawGroup.com
Diana James – Tel: 703-663-6757 / E-mail: daj@CommLawGroup.com
