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Paul Zimmerman
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Robocall Roulette: Federal Court Hands Significant Victory to TCPA Defendants

Businesses and organizations staring down lawsuits brought under the Telephone Consumer Protection Act (TCPA) have received welcome news from the federal courts. In a decision with significant implications, a Florida district court recently entered summary judgment in favor of the Seminole County School Board, reasoning that it is not a “person” that is subject to suit under the TCPA. See Lambert v. Seminole Cty. Sch. Bd., No. 15-0078 (M.D. Fla. Jan. 21, 2016). The decision presents a sizable obstacle for individuals bringing suit against school districts or other governmental entities under the TCPA, which has become an emerging trend. However, the reach of the decision may extend well beyond that. The Court’s analysis rests heavily on the reasoning that Congressional intent trumps isolated observations and sentences contained within Federal Communications Commission (FCC) Orders regarding the TCPA; this significant finding may aid commercial parties (not just government entities) in defending against TCPA lawsuits.

The TCPA was enacted by Congress in 1991 in an effort to prevent unsolicited “robocalling,” texting and faxing by telemarketers. It provides for the recovery by a successful plaintiff of actual damages suffered, or $500 statutory damages per call, text, or fax, whichever is greater. Under certain circumstances, the statutory damages may be increased by the court to up to $1,500 per infraction. Because calls, texts or faxes often continue for an extended period before a plaintiff sues, claimed damages can rise into the hundreds of thousands of dollars.

Due in large part to the FCC’s broad interpretations of the TCPA, there has been a recent wave of plaintiffs seeking to collect damages from school districts and other government entities. Many school districts use automated notification systems to place phone calls and send text messages to parents and guardians of students in order to relay information regarding attendance, campus safety, school events, etc. Certain school districts also have systems that place calls and send text messages communicating key information to employees or providing notifications of job opportunities to substitute teachers.

While contact numbers are generally voluntarily provided by the parents, guardians and employees intended to receive the calls and text messages, when those contact numbers are entered incorrectly into a system or disconnected and reassigned by a telephone service provider to a new user, people other than the intended recipients can become the unwitting recipients of the calls or text messages. Lawsuits brought by such accidental recipients have become increasingly common.

This is exactly what happened in the Lambert case. Plaintiff David Lambert sued the school board over calls he received from the district’s substitute teacher notification system. He is not an educator, but because his new mobile phone was assigned a telephone number formerly belonging to a substitute teacher, he received a series of automated calls. The school board filed a motion for summary judgment on multiple grounds, including the argument that the TCPA does not apply to government entities, such as school boards.

The presiding judge in the Lambert case observed that Congress enacted the TCPA to protect privacy by restricting certain types of commercial telephone solicitations and advertising, and chose to do so by prohibiting “any person within the United States” from making certain kinds of calls. 47 U.S.C. § 227(b)(1). The Lambert ruling therefore turned on the meaning of the word “person” as used in the TCPA. The judge reasoned that courts have not traditionally read the term “person” as applying to governmental entities unless a statutory scheme evinces a contrary intent. (citing Int’l Primate Prot. League v. Adm’rs of Tulane Educ. Fund, 500 U.S. 72, 82-83 (1991)). Finding no evidence of such intent in the TCPA’s legislative history, the Court concluded that “traditional canons of construction support an interpretation of ‘person’ that excludes governmental entities, especially in light of the congressional intent found in the TCPA and its attendant legislative history.”

Similarly, the Lambert court reasoned that “an isolated sentence in an FCC rulemaking, vaguely referencing school closing calls, cannot trump congressional intent.” In rejecting a sentence in an FCC document that states that certain calls delivering purely informational messages “such as school closings” require prior express consent, the Court made a very significant finding regarding the paramount importance of congressional intent when determining the scope of the TCPA. Here, the Court rejected Lambert’s argument that “the FCC has also suggested that school systems are subject to the TCPA,” by refusing to interpret much weight to FCC proclamations in the face of congressional intent.

While the order and judgment are subject to appeal, the Court’s decision should have ripple effects across the TCPA litigation landscape. First, it is clear that the initial intent of the TCPA was not, for example, to punish school districts for sending substitute teacher notifications to the wrong recipients, and to provide broader protection for governmental entities in general. This decision is a step toward bringing TCPA actions more in line with the aim of curbing aggressive, commercial telemarketing.

Second, this decision promises to have a considerable impact upon even non-government defendants. For some time, plaintiffs have relied on unfavorable isolated statements in the myriad of TCPA rulemaking decisions by the FCC, resulting in confusion regarding the true scope of the statute. Because FCC rulemaking cannot possibly keep up with the pace of emerging technologies, TCPA litigation is frequently plagued by ambiguity regarding statutory intent. Rulemaking decisions often lag months or years behind the advent of new technologies with TCPA implications; the resulting lawsuits usually require Court interpretation and enforcement of the TCPA well before the FCC renders a rulemaking decision. Moreover, these guidelines occasionally appear to run counter to what Congress intended on the face of the subject statute. The Lambert case expands the arsenal of available arguments to litigants; parties that find more favorable authority in the statute itself (and other indicia of legislative intent) than in the FCC rulemaking decisions, have been given a boost by the Lambert decision.

This article is not offered as, and should not be relied on as, legal advice. You should consult an attorney for advice in specific situations.