Communications Decency Act Does Not Bar TCPA Claims Against Providers of Telemarketing Services

TCPA Connect

A Wisconsin federal court has held, in Cunningham v. Montes, that the Communications Decency Act (CDA) does not preclude claims asserted against providers of telemarketing services under the Telephone Consumer Protection Act (TCPA).

In 2016, Craig Cunningham sued Michael Montes, the operator of a telemarketing service, TollFreeZone.com, Inc., through which clients could run telemarking campaigns, and several of his businesses, including TollFreeZone.com, alleging that they made unsolicited robocalls to Cunningham’s cellphone in violation of the TCPA.

After discovery, defendants moved for summary judgment on Cunningham’s first amended complaint. On defendants’ motion, there was no question that TollFreeZone.com’s clients made unsolicited robocalls to Cunningham’s cellphone. Nor was there any disagreement that such calls violated the TCPA. Rather, the parties disputed whether Montes and TollFreeZone.com could be held liable for those calls.

Among other things, Montes and TollFreeZone.com argued that they were entitled to summary judgment on Cunningham’s TCPA claims because the CDA shielded them from liability. The CDA provides that “[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”

According to Montes and TollFreeZone.com, the CDA barred Cunningham’s claims because TollFreeZone.com merely “served as a pass through messenger for the activities of third parties who made auto-dialed calls.” Thus, Montes and TollFreeZone.com effectively argued that because Cunningham sought to hold them liable for the activities of third-party telemarketers who made automated calls using their services, the CDA barred Cunningham’s claims.

In rejecting that argument, the court held that Montes and TollFreeZone.com had not cited a single case concluding that the CDA protects a provider of telemarketing services from TCPA liability and also noted that the court had found no such cases. However, the court also observed that a California federal court, in Nunes v. Twitter, Inc., 194 F. Supp. 3d 959 (N.D. Cal. 2016), suggested that the CDA “would not apply to TCPA liability because the harm addressed by the TCPA is not related to the content of the robocalls.” Relying on Nunes, the court held that the TCPA holds “purveyors of illegal robocalls” liable “as tortfeasors who intrude on the privacy of others” and “not as publishers of objectionable content.” For that reason, the court held that the CDA did not bar Cunningham’s TCPA claims against Montes and TollFreeZone.com.

The court further held that even if the CDA were available to telemarketing providers who failed to exercise control over their clients, it would still provide no refuge for Montes and TollFreeZone.com because of evidence indicating that Montes exercised control over his clients’ use of TollFreeZone.com’s telemarketing platform. As a result, Montes would not be able to show that TollFreeZone.com was “a neutral conduit for his clients’ messages.”

To read the order in Cunningham v. Montes, click here.

Why it matters: This appears to be the first case holding that the CDA does not bar TCPA claims against providers of telemarketing services.