Summary Judgment Entered in Favor of Common Carrier as Exempt Under the TCPA

The Western District of Washington has entered summary judgment in favor of Call Fire, a company who provides an online platform for voice and text connectivity, for alleged violations of the TCPA and Washington's Automatic Dialing and Announcing Device statute (the WADAD).  The court held that Call Fire was a common carrier and therefore exempt under the TCPA and did not initiate any of the calls and was therefore entitled to summary judgment under the WADAD as well.

In Rinky Dink v. Electronic Merchant Systems, C.A. No. C13-1347-JCC, (W.D. Wash. Feb. 24, 2015), Rinky Dink, a pet store, and Frank Knott, an individual, brought a proposed class action suit against defendant Electronic Merchant Systems (“EMS”) and Call Fire for violations of the TCPA and WADAD.  EMS contracted with Call Fire to transmit telephone calls that EMS designed and recorded.  Call Fire provides an online platform for its customers who design calling and texting campaigns through the Call Fire website.

In its motion for summary judgment, Call Fire contended it was a common carrier and therefore exempt under the TCPA.  The court agreed, noting that the TCPA was intended to “apply to the persons initiating the telephone call or sending the message and…not the common carrier…that transmits the call or messages and that is not the originator or controller of the content of the call or message.”  (emphasis supplied).  The court determined that Call Fire was a common carrier because (1) it offered the same terms of service to all of its customers; and (b) it allowed EMS to transmit messages of its own design and choosing, to numbers preselected by EMS at times preselected by EMS.  Since “EMS was the sole architect of the calls placed to plaintiff,” Call Fire was a common carrier and was exempt from liability under the TCPA. 

 

Moreover, the Court also held that Call Fire was entitled to summary judgment under the state statute because it did not initiate the calls.  While the WADAD does not provide a common carrier exemption, it does define commercial solicitation as being the "unsolicited initiation of a telephone conversation for the purpose of encouraging a person to purchase property, goods, or services."  Harkening back to the dictionary, the court determined the plain meaning of "initiate" as being to "cause the beginning of something."   The court then looked to Call Fire's processes and determined that since Call Fire transmits data only after the process is initiated by its customers, it does not initiate the calls and thus was not liable under the state statute.