A federal court recently held that a vendor of a VoIP service that allows callers to circumvent caller identification is not secondarily liable for the alleged TCPA violations of the caller that uses that service. See Clark v. Avatar Techs. PHL, Inc., No. 13-2777 (S.D. Tex. Jan. 28, 2014).
In Clark, the plaintiff alleged that the defendants used an ATDS to place a pre-recorded voice calls and also used a VoIP service that allowed it to circumvent caller identification by causing an inaccurate number to be displayed. He asserted claims against not only the caller (Avatar Technologies) but also the vendor of the VoIP service (Flowroute LLC). The latter moved to dismiss, arguing that it did not “make any call” as required by the TCPA’s plain language. See 47 U.S.C. § 227(b)(1)(A)(iii).
The court agreed. It explained that the TCPA does not allow for co-conspirator liability:
Under the TCPA, it is unlawful to “make any call” that otherwise violates the statute. Plaintiff alleges that Avatar, not Flowroute, made the … call to his cellular telephone. Plaintiff seeks to impose TCPA liability on Flowroute based on the allegation that Avatar used Flowroute’s technology to make the challenged call. Plaintiff cites no legal authority to support the argument that, without more, the TCPA imposes liability on the telecommunications carrier whose systems are used by another to make an unlawful call to a cellular phone. This Court’s research has revealed none.
Plaintiff alleges summarily that Avatar and Flowroute conspired to violate the TCPA. Plaintiff, however, cites no legal authority that supports the application of a conspiracy theory to impose liability under the TCPA. The United States District Court for the District of Maryland rejected a similar attempt to impose TCPA liability on a party that did not “make any call.” In that case, the district court noted that a statute under which a private plaintiff may sue and recover damages from a private defendant generally includes no presumption that the plaintiff may also sue aiders and abettors. This is true because “Congress [knows] how to impose aiding and abetting liability when it [chooses] to do so.”
Like aiding and abetting, conspiracy is a means of imposing secondary liability on a defendant other than the one who violated a statute. “Aiding and abetting liability, by its nature, extends liability beyond those who engage, even indirectly, in a proscribed activity; it applies to persons who may not engage in the proscribed activities at all.” Plaintiff in this case similarly seeks to impose liability on Flowroute, who Plaintiff concedes did not “make any call,” based on a conspiracy allegation. Plaintiff cites no legal authority to support the assertion that TCPA liability can be based on an alleged conspiracy, and this Court is aware of none. It is undisputed that the plain language of the statute does not specifically allow for such secondary liability. As a result, the Court declines to expand liability under the TCPA to a telecommunications carrier who is alleged to have conspired with the defendant who Plaintiff claims actually made the call.
Slip op. (citations omitted) (quoting Baltimore-Washington Tel. Co. v. Hot Leads Co., LLC, 584 F. Supp. 2d 736 (D. Md. 2008).
Although the court dismissed the plaintiff’s conspiracy-based claim with prejudice, it allowed him to amend the complaint to assert an independent claim under Section 227(e), which makes it unlawful “to cause any caller identification service to knowingly transmit misleading or inaccurate caller identification information with the intent to defraud, cause harm, or wrongfully obtain anything of value.” 47 U.S.C. § 227(e). It noted that this practice (called “spoofing”) has “both improper and legitimate applications” and is only prohibited if it is “intended to do harm.” Because the plaintiff had not tried to assert a claim under Section 227(e), the court granted him leave to do so.