In June, the Internet Association (“IA”)—which represents Internet giants such as eBay, Facebook, Google, Amazon, LinkedIn and Twitter, among others—suggested that the FCC clarify that Internet companies which “facilitate their users to communicate” are not “not caller[s] or sender[s] (or the initiator[s] of a call or text) for purposes of the TCPA.” In a letter dated June 11, 2015, the IA addressed what it viewed as an uncertainty under TCPA law: namely the extent to which any email and/or social media platform may potentially be liable under the TCPA for the calls or messages initiated by any one of the enormous number of users of the platform.
The IA’s letter recapped presentations made over the course of several days of meetings between the IA and a number of FCC officials. The letter highlights an issue of construction under the TCPA for social media platforms and applications that allow or facilitate the translation of communications into texts or phone calls sent to devices using standard telephone numbers, specifically, whether the platform or application provider or the party initiating a call or text is the entity doing the “calling” or “sending” of an unlawful call or text message. TCPA obligations and liabilities typically only attach to a caller or sender of a prohibited communication.
Arguing that it is the user initiating a message that should be accountable under the TCPA, the IA focused on volition, arguing that “[b]ecause it is the user and not the platform doing the calling, the Internet platform does not have the requisite volition to be considered a caller under the TCPA.” The IA further noted that platforms or applications merely facilitate communication between users, who ultimately “control…creating and sending [their] message,” such as by sending and receiving tweets, messages, shares, posts, and “likes,” and that users, not platforms also “control how [they] receive messages.” Accordingly, the IA argued, only end users have the requisite volition to violate federal law, and thus should be solely liable under the TCPA for any unlawful communications that their uses and choices about delivery of communications they initiate or choose to receive may cause.
The IA likened its members’ relationships with their users to the relationship between purveyors of television-recording technology (such as DVR) and its users, and cited recent decisions in the Second and Ninth Circuits finding that, for example, DISH Network and Cablevision were not liable for federal copyright infringement by their users because the technology “merely enabled the customer to record copyrighted programming for home viewing,” not necessarily for illegal dissemination. See, e.g., Fox Broad. Co. v DISH Network LLC, 747 F.3d 1060, 1064-65 (9th Cir. 2013). Likewise, the IA argued, its members’ platforms or applications are mere conduits, while users are the ones who possess the volition necessary to violate the TCPA through their use or potential misuse of these conduits.
Not content to argue statutory construction alone, the IA also argued that the FCC should distinguish between Internet platforms and Internet users for the purposes of the TCPA in order to be consistent with federal internet policy. For example, the Communications Decency Act exempts interactive computer services from liability for the content a user publishes on its platform. Further, the IA pointed to the positive effects of the availability of its members’ platforms “in the marketplaces of ideas and commerce,” despite the risk of misuse. The IA argued that platforms such as Twitter, Facebook, eBay, Reddit, Amazon, and other IA members, have had an outsized impact in facilitating a “free and fast exchange of ideas; often allowing users to break news ahead of traditional sources and disseminate information to a global audience instantly,” which in turn has positively influenced global affairs, allowing “even the most modest in society to compete with the most deep-pocketed stakeholders.”
IA has not taken the step of filing a petition for declaratory ruling or clarification of FCC TCPA rules. Given that the letter was filed only days before the FCC voted on a raft of long-pending TCPA petitions on June 18, it may be that IA’s true purpose was to ensure that the FCC did not inadvertently address the areas of prime interest to IA members in any casual way that might create the risk of new TCPA liability for Internet platform or application providers. Only review of the yet to be released FCC Declaratory Ruling on twenty-one TCPA petitions will tell us whether the IA gained some traction on this important issue.