APPRISS Stuck in a Telephone Consumer Protection Act Lawsuit
For those wondering where the limit on Telephone Consumer Protection Act wrong number cases might be, keep looking.
A state vendor in Rhode Island whose job is to alert victims when the inmates that hurt them have been released from jail is on the TCPA hook for sending notifications to the wrong phone number. According to its website,“the service is a free, anonymous, computer assisted telephone service that provides offender custody information and notification of changes in offender custody status.” As the website explains, the service is built “with safety in mind” and it only sends messages to numbers that are registered with the program.
Well it turns out a fella in Rhode Island really did not appreciate receiving these custody updates—which were apparently intended for someone else—and he sued the state-vendor that supplies the notifications under the TCPA. Somewhat unbelievably (at least to me) the Court has sided with the Plaintiff and is allowing the suit to proceed.
In Laccinole v. Appriss, Inc., CA No. 19-605 WES, 2020 U.S. Dist. LEXIS 64238 (D. R.I. April 13, 2020) the Defendant moved to dismiss the complaint contending that the Plaintiff faied to state a viable cause of action. The Court disagreed, concluding first that the allegations of the complaint and the content of judicially-noticeable websites do not conclusively demonstrate that the Defendant is a common carrier or otherwise insulated from the calls at issue.
Further, the Court found that the ATDS allegations, which are threadbare in nature, are acceptable in this suit given the pro se Plaintiff and the fact that the use of a pre-recorded voice is also alleged. More basically, the Court found the allegations of ATDS usage to make calls to a cell phone without consent are all present so the claim can proceed past the pleading stage. A related DNC claim was dismissed, however, as the notifications at issue did not seek to sell any products.
Laccinole really demonstrates that the TCPA is not concerned about content or intent. Any caller using an ATDS to send a message to cell phones—even state vendors delivering important messages—must have appropriate consent. And, interestingly, the Court found that the emergency purpose exception did not apply to the messages because the Plaintiff had (allegedly) asked for the calls to stop. In the Court’s view a Plaintiff’s request that messages cease trumps a parties’ right to send emergency messages under the TCPA—a questionable ruling as the TCPA permits calls with express consent or for an emergency purpose.
This is a fascinating little case. We’ll keep an eye on it.