Section 230 Bars FTC’s Robocall Claim vs. Stratics, Says Motion to Dismiss

The FTC’s sole claim against Stratics Networks is barred under Section 230 of the Communications Decency Act because Stratics’ ringless voicemail (RVM) platform and session initiation protocol termination service are interactive computer services under that statute, said Stratics’ memorandum of points and authorities Tuesday (docket 3:23-cv-00313) in U.S. District Court for Southern California in San Diego in support of its motion to dismiss the FTC’s Feb. 16 complaint. The government improperly seeks to hold Stratics liable as the publisher or speaker of content provided solely by others, it said.

The FTC alleges Stratics’ outbound calling services enabled its clients to transmit millions of debt-relief robocalls and RVMs to consumers using VoIP, in violation of the Telemarketing Sales Rule (see 2302170032). Stratics stopped providing the alleged services in 2020, and the government’s claim for providing substantial assistance or support for violations of the TSR fails to state a claim on which relief can be granted, said its memorandum. Stratics also challenges the FTC’s constitutional authority to bring the suit because FTC commissioners aren’t removable at the will of the president, it said.

Stratics is “immune” under Section 230 from the government’s claim that it substantially assisted others in the violation of the TSR, said the memorandum. Even if the claim weren't barred by Section 230, there are no facts pled that, even if true, could support a determination that Stratics knowingly provided substantial assistance to those engaging in unlawful activity, or that Stratics “consciously avoided having such knowledge,” it said.

The complaint alleges no conduct by Stratics “other than publishing or transmitting the content of the other defendants,” said the memorandum. The FTC doesn’t claim Stratics “had any role in the creation, development or production of any of the content" the other defendants transmitted using Stratics’ systems, it said. Nor does the government allege Stratics “had any role in selecting the voicemail accounts to which the other defendants allegedly published that content,” it said. The other defendants “created the content and caused it to be published to voicemail accounts they alone selected,” it said. Stratics’ only role “was the provision of the technology by which the content was published,” it said. Section 230 “prohibits a suit against the mere provider of such technology,” it said.

The FTC fails to allege an underlying violation of the TSR because the RVMs at issue aren’t outbound phone calls as defined by the TSR and can’t violate the TSR as a matter of law, said the memorandum. Stratics can’t be guilty of substantially assisting a violation “that doesn’t exist,” it said.

Even if it could properly allege Stratics’ former users violated the TSR, the government also fails to adequately allege Stratics “substantially assisted any of them,” said the memorandum. Stratics “merely provided information services to these users, like it does for anyone,” it said. Stratics “is engaged in a lawful business, and its systems are used by thousands of users, including local and federal governments, lawfully every day,” it said.

The injunctive relief the FTC seeks against Stratics in the lawsuit “is both improper and unnecessary,” said the memorandum. Stratics terminated its relationships with the co-defendants more than two years ago, and the government “alleges nothing” that Stratics has done or failed to do since 2020, it said. The FTC can’t claim it has reason to believe Stratics is about to violate any law, “rendering injunctive relief inapplicable,” it said. Nothing Stratics is alleged to have done, even in 2019 or 2020, has ever been determined to be a violation of any FTC rule, “which eliminates the possibility of any civil penalty” against Stratics in the case, it said.