In Clark v. Avatar Technologies Phl, Inc., 2014 WL 309079 (S.D.Tex. 2014), Judge Atlas granted a Motion to Dismiss under the TCPA filed against a VoIP service provider.
Plaintiff alleges that, in July 2013, Avatar made a call to his cellular telephone using an “artificial or prerecorded voice.” See id., ¶ 14. Plaintiff alleges that Avatar made the call using “Flowroute’s VoIP services, and employing Flowroute’s Calling Name Management Service (“CNAM–MS”) to alter the caller’s identification as it appeared on Plaintiff’s cellular phone.” Id.
The Court found that the VoIP provider was not the one who “made any call” under the TCPA.
Under the TCPA, it is unlawful to “make any call” that otherwise violates the statute. Plaintiff alleges that Avatar, not Flowroute, made the July 31, 2013, call to his cellular telephone. Plaintiff seeks to impose TCPA liability on Flowroute based on the allegation that Avatar used Flowroute’s technology to make the challenged call. Plaintiff cites no legal authority to support the argument that, without more, the TCPA imposes liability on the telecommunications carrier whose systems are used by another to make an unlawful call to a cellular phone. This Court’s research has revealed none. ¶ Plaintiff alleges summarily that Avatar and Flowroute conspired to violate the TCPA. Plaintiff, however, cites no legal authority that supports the application of a conspiracy theory to impose liability under the TCPA. The United States District Court for the District of Maryland rejected a similar attempt to impose TCPA liability on a party that did not “make any call.” See Baltimore–Washington Tel. Co. v. Hot Leads Co., LLC, 584 F.Supp.2d 736 (D.Md.2008). In that case, the district court noted that a statute under which a private plaintiff may sue and recover damages from a private defendant generally includes no presumption that the plaintiff may also sue aiders and abettors. Id. at 745 (citing Central Bank of Denver, N.A. v. First Interstate Bank of Denver, N .A., 511 U.S. 164, 182 (1994)). This is true because “ ‘Congress [knows] how to impose aiding and abetting liability when it [chooses] to do so.’ “ Id. at 745–46 (quoting Central Bank, 511 U.S. at 176, 182–83). ¶ Like aiding and abetting, conspiracy is a means of imposing secondary liability on a defendant other than the one who violated a statute. See id. at 746 (citing Central Bank, 511 U.S. at 184. “Aiding and abetting liability, by its nature, extends liability beyond those who engage, even indirectly, in a proscribed activity; it applies to persons who may not engage in the proscribed activities at all.” Id. (citing Central Bank, 511 U.S. at 176). Plaintiff in this case similarly seeks to impose liability on Flowroute, who Plaintiff concedes did not “make any call,” based on a conspiracy allegation. Plaintiff cites no legal authority to support the assertion that TCPA liability can be based on an alleged conspiracy, and this Court is aware of none. It is undisputed that the plain language of the statute does not specifically allow for such secondary liability. As a result, the Court declines to expand liability under the TCPA to a telecommunications carrier who is alleged to have conspired with the defendant who Plaintiff claims actually made the call. ¶ This ruling is supported by the legislative history of the TCPA, in which it was made clear that the statute and the regulations “apply to the persons initiating the telephone call or sending the message and do not apply to the common carrier or other entity that transmits the call or message and that is not the originator or controller of the content of the call or message.” See S.Rep. No. 102–178, at 9 (1991) (emphasis added). Because the legislative history demonstrates that Congress intended that the TCPA not apply to telecommunications common carriers unless they controlled the content of the call or message, the Court concludes that Congress did not intend to allow secondary liability on telecommunications carriers based on an allegation of conspiracy.FN2 As a result, Plaintiff’s TCPA claim against Flowroute, which is based on an alleged conspiracy, is dismissed with prejudice.
The District Court also dismissed the Truth-in-Caller ID Act claim because Plaintiff failed to plead the requisite intent.
Section 227(e) of the TCPA provides that it is “unlawful for any person within the United States, in connection with any telecommunications service or IP-enabled voice service, to cause any caller identification service to knowingly transmit misleading or inaccurate caller identification information with the intent to defraud, cause harm, or wrongfully obtain anything of value.” 47 U .S.C. § 227(e). Although Plaintiff does not assert § 227(e) as the basis for his TCPA claim, he alleges that the call from Avatar contained inaccurate caller identification information. See Original Complaint, ¶ 14. ¶ Misrepresentation of the called identification information is known as “spoofing.” See Tel–Tech Sys., Inc. v. Bryant, 702 F .3d 232, 234 (5th Cir.2012). “The practice has both improper and legitimate applications.” Id. As a result, Congress drafted § 227(e) of the TCPA specifically to protect the legitimate applications and to prohibit only those applications intended to do harm. See id. at 238. In this case, Plaintiff has failed to allege that Flowroute acted with the intent to defraud, cause harm, or wrongfully obtain anything of value from Plaintiff. As a result, the § 227(e) claim—to the extent one is asserted—is dismissed.