The Middle District of Florida recently entered summary judgment in favor of a school board, reasoning that it is not a “person” that is subject to suit under the TCPA. See Lambert v. Seminole Cty. Sch. Bd., No. 15-0078 (M.D. Fla. Jan. 21, 2016). The decision creates a potentially insurmountable obstacle for plaintiffs who have taken to setting their sights on school districts and other well intentioned government actors.
In Lambert, the defendant allegedly made 537 calls to the plaintiff’s cellphone shortly after he received a reassigned number. The calls used prerecorded voice prompts and messages that were meant to communicate with prospective substitute teachers, to whom the school district had issued five-digit identification codes. The plaintiff alleged that he was not the intended recipient of the calls and that he neither worked as a substitute teacher nor received an identification code.
Although the parties had filed broad cross-motions for summary judgment, the Court chose to dispose of the matter on narrow grounds, specifically that the calls were beyond the scope of the TCPA. Judge Sharp began by observing that Congress enacted the TCPA to protect privacy by restricting certain types of commercial telephone solicitations and advertising, and chose to do so by prohibiting “any person within the United States” from making certain kinds of calls. Id. 4. His ruling thus turned on the meaning of the word “person” as used in the TCPA.
Although the TCPA does not define “person,” it is an amendment to the Communications Act, which defines a “person” as an “individual, partnership, association, joint-stock company, trust or corporation.” Id. at 4-5 (citing 47 U.S.C. § 153(39)). The Court noted that “any mention of governmental entities, let alone a phrase that may reasonably be construed as encapsulating a sovereign,” was conspicuously absent from this statutory definition. Id. at 5. This led the Court to the “inevitable conclusion that governmental entities fall outside the ambit of the TCPA’s cause of action.” Id.
The Court also reasoned that courts have not read the term “person” as applying to governmental entities unless a statutory scheme evinces a contrary intent. Id. at 6 (citingInt’l Primate Prot. League v. Adm’rs of Tulane Educ. Fund, 500 U.S. 72, 82-83 (1991)). Finding no evidence of such an intent in the TCPA’s legislative history, the Court concluded that “traditional canons of construction support an interpretation of ‘person’ that excludes governmental entities, especially in light of the congressional intent found in the TCPA and its attendant legislative history.” Id.
The Court quickly disposed of the argument that the defendant was subject to suit because state law authorizes limited waivers of sovereign liability in tort actions. It explained that the scope of the statute turned on Congress’s intent, not Florida’s intent, and that “if Congress did not intend to make the TCPA available against governmental entities, it is irrelevant that a governmental entity makes itself available for suit.” Id. at 7. It also rejected the suggestion that the defendant had not timely raised this argument, noting that it was required to affirmatively establish subject matter jurisdiction irrespective of whether a party challenges it. Id. at 4-5.
The Lambert decision is an important development for school districts and other government entities that have been targeted in TCPA class actions, as it establishes an early, solid ground for dismissal before discovery. It also appears to be the latest of a growing number of cases that have tried to bring some sense to litigation under the TCPA, which some plaintiffs have tried to stretch far beyond what Congress originally intended. Government actors and their alleged agents have responded to such suits with a variety of procedural and substantive defenses, some of which have been more successful than others. Indeed, one education technology company has even petitioned the FCC for (among other things) a declaration that the types of informational calls typically made by school districts fall within the scope of the TCPA’s emergency purpose exemption. See In the Matter of Blackboard Inc. Petition for Expedited Declaratory Ruling, CG Doc. No. 02-278 (Feb. 25, 2015). We will continue to monitor these matters and report on any relevant developments.