On February 22, 2016, the United States District Court for the Northern District of Illinois granted summary judgment to Voiceshot LLC (“Voiceshot”), dismissing a Telephone Consumer Protection Act (“TCPA”) class action lawsuit filed against it. The Court concluded that Voiceshot, a company that offers web-based communication services that subscribers may access and use through a web-based user interface hosted on Voiceshot’s website, is a common carrier for TCPA purposes. The Court went on to conclude that because Voiceshot is a common carrier and did not have a high degree of involvement in the facts at issue, and had never been warned of unlawful activity, it is immune from TCPA liability.
Why is Voiceshot Immune from TCPA Liability?
Common Carrier Immunity Under the TCPA
The facts of the case are quite simple. The plaintiff received a text message with a commercial advertisement from a former potential business partner. The plaintiff sued both the former potential partner and Voiceshot, the service through which the former potential partner sent the subject text message.
Voiceshot allows its customers to upload telephone numbers and use its service to send text and group text messages. Voiceshot does not control whom subscribers decide to send text messages to, nor does it control or alter the content of these text messages.
The Court concluded that Voiceshot is a common carrier under the TCPA because it “holds itself out to serve indifferently all potential users” and because it allows “customers to transmit intelligence of their own design and choosing.” However, even common carriers do not have blanket immunity under the TCPA. As the Court stated, “[a] common carrier may be held liable for the unlawful acts of its users if it is found that the carrier: (1) exercised a high degree of involvement with the unlawful activity, or (2) had actual notice of an illegal use of its services.” Because Voiceshot had minimal involvement and no actual notice (i.e., no warning from the Federal Communications Commission) of any illegal use of its services, the Court held that it had no TCPA liability for the text messaging at issue.
We have previously blogged about a similar service offered by CallFire, which has also been found to be a common carrier. The import of these two decisions: the less involved a text transmitting service is, the more likely it will be found to be a common carrier.