February 24, 2020

February 24, 2020

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Internet Association Asks FCC To Distinguish Internet Platforms From Their Users For TCPA Purposes

In June, the Internet Association (“IA”)—which represents Internet giants such as eBay, Facebook, Google, Amazon, LinkedIn and Twitter, among others—suggested that the FCC clarify that Internet companies which “facilitate their users to communicate” are not “not caller[s] or sender[s] (or the initiator[s] of a call or text) for purposes of the TCPA.” In a letter dated June 11, 2015, the IA addressed what it viewed as an uncertainty under TCPA law: namely the extent to which any email and/or social media platform may potentially be liable under the TCPA for the calls or messages initiated by any one of the enormous number of users of the platform.

The IA’s letter recapped presentations made over the course of several days of meetings between the IA and a number of FCC officials. The letter highlights an issue of construction under the TCPA for social media platforms and applications that allow or facilitate the translation of communications into texts or phone calls sent to devices using standard telephone numbers, specifically, whether the platform or application provider or the party initiating a call or text is the entity doing the “calling” or “sending” of an unlawful call or text message. TCPA obligations and liabilities typically only attach to a caller or sender of a prohibited communication.

Arguing that it is the user initiating a message that should be accountable under the TCPA, the IA focused on volition, arguing that “[b]ecause it is the user and not the platform doing the calling, the Internet platform does not have the requisite volition to be considered a caller under the TCPA.” The IA further noted that platforms or applications merely facilitate communication between users, who ultimately “control…creating and sending [their] message,” such as by sending and receiving tweets, messages, shares, posts, and “likes,” and that users, not platforms also “control how [they] receive[] messages.” Accordingly, the IA argued, only end users have the requisite volition to violate federal law, and thus should be solely liable under the TCPA for any unlawful communications that their uses and choices about delivery of communications they initiate or choose to receive may cause.

The IA likened its members’ relationships with their users to the relationship between purveyors of television-recording technology (such as DVR) and its users, and cited recent decisions in the Second and Ninth Circuits finding that, for example, DISH Network and Cablevision were not liable for federal copyright infringement by their users because the technology “merely enabled the customer to record copyrighted programming for home viewing,” not necessarily for illegal dissemination. See, e.g., Fox Broad. Co. v DISH Network LLC, 747 F.3d 1060, 1064-65 (9th Cir. 2013). Likewise, the IA argued, its members’ platforms or applications are mere conduits, while users are the ones who possess the volition necessary to violate the TCPA through their use or potential misuse of these conduits.

Not content to argue statutory construction alone, the IA also argued that the FCC should distinguish between Internet platforms and Internet users for the purposes of the TCPA in order to be consistent with federal internet policy. For example, the Communications Decency Act exempts interactive computer services from liability for the content a user publishes on its platform. Further, the IA pointed to the positive effects of the availability of its members’ platforms “in the marketplaces of ideas and commerce,” despite the risk of misuse. The IA argued that platforms such as Twitter, Facebook, eBay, Reddit, Amazon, and other IA members, have had an outsized impact in facilitating a “free and fast exchange of ideas; often allowing users to break news ahead of traditional sources and disseminate information to a global audience instantly,” which in turn has positively influenced global affairs, allowing “even the most modest in society to compete with the most deep-pocketed stakeholders.”

IA has not taken the step of filing a petition for declaratory ruling or clarification of FCC TCPA rules. Given that the letter was filed only days before the FCC voted on a raft of long-pending TCPA petitions on June 18, it may be that IA’s true purpose was to ensure that the FCC did not inadvertently address the areas of prime interest to IA members in any casual way that might create the risk of new TCPA liability for Internet platform or application providers.   Only review of the yet to be released FCC Declaratory Ruling on twenty-one TCPA petitions will tell us whether the IA gained some traction on this important issue.

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About this Author

Laura Phillips, Drinker Biddle Law Firm, Washington DC, Communications Law Attorney

Laura H. Phillips is a partner in and chair of the firm's Government & Regulatory Affairs Practice Group and a member of the Telecommunications & Mass Media Team.  She has over 25 years of experience working in nearly every aspect of the telecommunications market.

Laura counsels wireless and wired technology entrepreneurs and represents these clients on issues related to the development of new technologies, including devoting substantive attention to the development of spectrum auctions, network...

Bradley Andreozzi, Litigation Attorney, Complex, Drinker Biddle Law Firm, Chicago

Bradley J. Andreozzi represents clients in complex high-stakes civil litigation, including class action trials and appeals. Brad has represented clients in virtually every federal appellate court, including the Supreme Court, and in many trial courts throughout the country.

Brad defends clients in class actions under various federal and state consumer protection laws, including the Telephone Consumer Protection Act (TCPA), the Fair and Accurate Credit Transaction Act (FACTA) and many state false advertising statutes. His practice has a particular focus on the development of creative arguments to dismiss or limit claims and defeat class certification.

Brad represents public companies and auditors in the defense of shareholder class actions and derivative actions, both at trial and appeal. He also represents securities issuers in matters before the SEC. He tried a death penalty case and won before the U.S. Supreme Court and significant commercial cases won before the U.S. Circuit Court of Appeals in the First, Second, Fourth, Sixth and Seventh Circuits as well as the Illinois Supreme Court.

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