In Threadford v. Board of Trustees of University of Alabama, 2018 WL 2197554, at *2–3 (N.D.Ala., 2018), Judge Proctor dismissed a TCPA claim against the University of Alabama.
There are two exceptions to Eleventh Amendment immunity: First, Congress can abrogate eleventh amendment immunity without the state’s consent when it acts pursuant to the enforcement provisions of section 5 of the fourteenth amendment. Atascadero State Hospital v. Scanlon, 473 U.S. 234, 238, 105 S.Ct. 3142, 3145, 87 L.Ed.2d 171 (1985). Second, a state may waive its immunity expressly through legislative enactment. “In the absence of consent, a suit in which the State or one of its agencies or departments is named as the defendant is proscribed by the Eleventh Amendment.” Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 100, 104 S.Ct. 900, 908, 79 L.Ed.2d 67 (1984). Carr, 916 F.2d at 1524-25 (internal footnote omitted and alterations adopted). The second exception to Eleventh Amendment immunity does not apply, as the State of Alabama has not waived its immunity. See Ala. Const. Art. I, § 14 (“[T]he State of Alabama shall never be made a defendant in any court of law or equity.”). Therefore, the court must address whether Congress has abrogated Eleventh Amendment immunity in the TCPA. It has not. “Congress may abrogate the States’ constitutionally secured immunity from suit in federal court only by making its intention unmistakably clear in the language of the statute.” Dellmuth v. Muth, 491 U.S. 223, 228 (1989) (quoting Atascardero State Hosp. v. Scanlon, 473 U.S. 234, 242 (1985) ). “[E]vidence of congressional intent must be both unequivocal and textual.” Id. at 230. The TCPA, located in 47 U.S.C. § 227, contains this relevant private cause of action: A person or entity may, if otherwise permitted by the laws or rules of court of a State, bring in an appropriate court of that State— (A) an action based on a violation of this subsection or the regulations prescribed under this subsection to enjoin such violation, (B) an action to recover for actual monetary loss from such a violation, or to receive $500 in damages for each such violation, whichever is greater, or (C) both such actions. If the court finds that the defendant willfully or knowingly violated this subsection or the regulations prescribed under this subsection, the court may, in its discretion, increase the amount of the award to an amount equal to not more than 3 times the amount available under subparagraph (B) of this paragraph. 47 U.S.C. § 227(b)(3). The TCPA specifies the extent to which it preempts state law. Id. § 227(f). And, it authorizes civil actions by the states’ attorneys general and chief legal officers. Id. § 227(e)(6), (g). But, nothing in the TCPA suggests that Congress intended to abrogate the states’ Eleventh Amendment immunity. Therefore, the TCPA does not abrogate Defendant’s Eleventh Amendment immunity, and the TCPA claim against Defendant is due to be dismissed