Conduit or Can’t Do It?: Platform Providers Suddenly in a Bind When Customers Use Their Products to Violate the TCPA
Not long ago I would have told you that platform providers are “fine” when asked whether they could be held liable solely for the unlawful actions of customers using their products. Just like Verizon is never liable when a scam call emanates from one of its users, the creators of mobile technology platforms and Voice Over Internet Providers should have nothing to worry about when miscreants run a muck using their platforms. After all, and as we all know, telecommunications platforms don’t robocall people, people robocall people.
Except, it may not be that simple anymore.
In Hurley v. Messer, Case No. 3:16-9949, 2018 U.S. Dist. Lexis 171588 (D. W.V. Oct. 4, 2018), the court held that a platform provider can be liable for the TCPA violations committed by the users of the platform where they “knowingly allowed its client(s) to use that
platform for unlawful purposes[.]” Hurley at *14.
In Hurley the defendants– telephony platforms RingCentral and Callcentric–argued on a 12(b)(6) motion that they were mere conduits through which the calls of others flowed. Since they were mere “passive conduits” they could not possibly have “initiated” the pre-recorded calls at issue in the case, or so they argued.
The Court was not convinced, however. Reaching back to the FCC’s handiwork in the portion of the Omnibus that was not reversed by ACA Int’l, the Court found that determining who initiates a call requires looking to “the totality of the facts and circumstances surrounding the placing of a particular call to determine: 1) who took the steps necessary to physically place the call; and 2) whether another person or entity was so involved in placing the call as to be deemed to have initiated it, considering the goals and purposes of the TCPA.” Hurley at *8 quoting the Omnibus at par. 30.
The Court goes on to note that whether a person is “so involved” in placing the call includes consideration of whether the party “knowingly allowed [their] client(s) to use that platform for unlawful purposes[.]” Id. at *9.
When looking at the allegations of the complaint, the Court accepted as true for purposes of the motion allegations that Defendants had “direct knowledge of and the right of control over the illegal conduct alleged” in the Complaint. In light of these allegations the court found that sufficient allegations had been made to sustain a finding of direct liability on the part of the Defendants:
Plaintiff alleges these Defendants knew about the illegal conduct, had a right to control the conduct but, nevertheless, permitted the robocalls to be broadcast through their assigned telephone numbers….These allegations, at the very least, are sufficient to state a plausible claim that Callcentric and RingCentral offered a calling platform and “knowingly allowed its client(s) to use that platform for unlawful purposes[.]”
Hurley at *13-14.
Keep in mind that this ruling was handed down at the pleadings stage so there’s no need to panic unnecessarily. Notably it is the “right to control” allegations that stand out as potentially the most impactful here. It seems unlikely that the platform providers actually had the ability to dictate the callers calling practices so this case probably will not survive summary judgment. Anytime a Defendant is found to have the “right to control” another’s conduct it suggests an agency relationship might be afoot. And although the theory being addressed in Hurly is a theory of direct liability–and not vicarious liability– it can be tough for a court to slice those hairs at the pleadings stage. This is especially true when you couple the allegations of “control” with the allegations of “knowledge” that the lines are being used for illegal conduct. Package that up and you get close enough to the line of “involvement” with placing the calls to survive the pleadings stage–at least according to the Hurley court.
Although the rule of Hurley is a strange one from a legal standpoint, it makes decent sense from a pragmatic standpoint. Who better to police the activities of mobile technology users than the manufacturer of those technologies? Still, to hold a platform user liable for the conduct of third parties seems to violate the ancient legal maxim that none of us have a duty to control the actions of third parties, especially when the conduct at issue is speech. Ssssshhh!
At bottom, this is pretty scary stuff, and a pretty vast extension of the FCC’s one-liner in the Omnibus regarding knowledge of platform misusage being one factor to be considered in assessing who is initiating the calls. Be careful out there platformers.
For what it’s worth, however, the Court also found that supplying a voice-over actor to record voice messages to be played in an illegal robocall campaign is not sufficient “involvement” with the initiation of the call to justify direct liability on a talent agent. So there's that…