Fla. AG's Robocall Suit 'Lacks Sufficient Detail,' Says Defendant SmartBiz

SmartBiz Telecom “vehemently disputes” all factual robocalling allegations in a December complaint brought by Florida Attorney General Ashley Moody (R) over alleged violations of several statutes (see Ref:2212060034), said the defendant's motion to dismiss Friday (1:22-cv-23945) in U.S. District Court for Southern Florida in Miami. AG Moody “is trying to water seeds that haven’t been planted yet,” said defendant SmartBiz.

Moody's complaint alleged violations of several statutes, including the Telemarketing and Consumer Fraud and Abuse Prevention Act, the FTC's Telemarketing Sales Rule, the Telephone Consumer Protection Act and Florida's Deceptive and Unfair Trade Practice Act. But Moody's complaint lacks Article III standing, said the SmartBiz dismissal motion. The complaint lists no victims or instances of concrete injury, it said, despite Moody's claim that SmartBiz is “one of the most prolific transmitters of illegal robocalls” in the U.S. Article III standing requires “sufficient detail and not conclusory allegations,” said the motion.

The AG's authority to enforce FCC rules doesn't allow Moody's agency "to make new rules the FCC itself has not made," said the defendant. Nor is it allowed to impose penalties for "conduct that the FCC does not consider illegal,” said the defendant. The conduct alleged in the complaint is already regulated by the Telephone Robocall Abuse Criminal Enforcement and Deterrence Act, it said: "There are no allegations the TRACED Act has been violated.”

SmartBiz doesn't make or initiate prerecorded calls, instead accepting calls from “upstream” providers, which SmartBiz said is a prerequisite to liability in TCPA provisions relied on in the complaint. SmartBiz is an “intermediate provider” that transmits calls it receives from upstream and therefore “cannot be the one ‘making’ or ‘initiating’ the calls,” said the motion.

The injunctive relief AG Moody seeks “seems to pertain to stopping the traffic" that SmartBiz carries under its contracts with upstream providers, said the motion. If SmartBiz were forced to cease all traffic under its contracts, or invalidate them, “it could result in contractual liability" for the company, it said. It asked the court to order the “joinder of required parties" named in the complaint whose interests are affected "if the traffic is deemed illegal.”