Onvoy, Bandwidth Move to Dismiss Plaintiff's 4 TCPA Claims With Prejudice

Timothy Aguilar’s four claims against Onvoy and Bandwidth in a Telephone Consumer Protection Act lawsuit should be dismissed with prejudice for lack of personal jurisdiction, said their motion to dismiss Wednesday (docket 4:23-cv-03988) in U.S. District Court for Southern Texas in Houston. The defendants' motion also contends the complaint should be dismissed for failure to state a claim on which relief may be granted.

Aguilar amended his Oct. 19 complaint in January (see 2401040047), upping the number of illegal “robo/nuisance, spoofed, artificial bot voice telemarketing calls” he had received from Network Insurance Senior Health Division (NISHD) and Berken Media from 700 to over 1,000, despite his listing on the national do not call registry. Aguilar claims two TCPA violations, a claim under the Texas Business and Commercial Code (TBCC) and a claim for intentional infliction of emotional distress under Texas common law, the supporting brief said.

Pasadena, Texas, resident Aguilar alleges that in January 2023 he began receiving illegal robocalls from defendants NISHD and Berken Media pitching car warranties, medical and diabetic services, final expense services, home solar products, and accident claim legal services. He also asserts the carrier defendants should be liable for initiating or facilitating the robocalls because they transmitted the calls “with their VoIP call services technology.”

Carrier defendants Onvoy and Bandwidth “merely route communications to a 'downstream provider,'” said the brief. Aguilar alleges Onvoy and Bandwidth provide customers with VoIP call services technology but doesn’t allege the companies are incorporated in Texas; he acknowledges their principal places of business are outside of Texas, said the brief.

Aguilar further alleges that an unidentified “Spoofer or Client” paid the carrier defendants to use their VoIP technology to send “thousands upon thousands” of calls to individuals and that the carrier defendants contracted with NISHD and Berken to initiate the calls, the brief said. “Noticeably missing” from Aguilar’s allegations is information about “any ability of Onvoy or Bandwidth to change or re-designate where (to whom) the call is going,” said the brief. In alleging that NISHD and Berken initiated the calls and paid another provider to transmit them, Aguilar “admits that neither Onvoy nor Bandwidth can be the party that initiated the alleged illegal robocalls,” the brief said.

Aguilar also conceded, when alleging the carrier defendants receive information directing them to route the calls to a specific downstream provider, that they aren’t the final party that sends the calls to his phone, said the brief. The plaintiff “does not offer any facts to show that Carrier Defendants exert any control over the content or destination of the calls purportedly made by NISHD or Berken” or that Onvoy and Bandwidth “are privy to the content of those calls,” it said.

Aguilar’s allegation that the carrier defendants are liable for making the calls under the TCPA -- “even though they are only alleged to have passed the calls after they were already made” -- would result in the extension of TCPA liability “to all passive telecommunications carriers” and therefore “must fail,” the brief said. “Congress never intended to impose direct TCPA liability upon entities like Onvoy and Bandwidth who merely transmit calls to the next carrier in the chain,” it said. And under applicable case law and rulings from the FCC, “carriers in the telecommunications chain cannot be liable under the TCPA,” it said.

A similar theory of vicarious liability, that NISHD and Berken used a third party to initiate a call, should also fail as Aguilar can’t establish that carrier defendants are “acting as agents of or hold some type of control over NISHD or Berken,” the brief said. Vicarious liability under the TCPA requires a plaintiff to establish “an agency relationship” between two parties, it said. The complaint doesn’t allege facts needed to show that Onvoy and Bandwidth had an agent relationship with NISHD or Berken, it said.

Aguilar’s “add-on claims” under the TBCC and of intentional infliction of emotional distress under Texas common law should also fail, said the brief. The TBCC “explicitly exempts” entities such as the carrier defendants, who are subject to the licensing regulations of the FCC, the brief said. Also, Aguilar fails to plead they are “sellers” under the TBCC's Section 302, it said. And Aguilar fails to plead any conduct that is “extreme and outrageous” as required to show “severe emotional distress,” it said.

All four of Aguilar’s claims against Onvoy and Bandwidth should be dismissed because the plaintiff fails to plead that either defendant “is ‘at home’ in Texas," as required to exercise general personal jurisdiction, or that the suit arises out of their contacts with the forum state, the brief said. Aguilar argues he has established requirements for personal jurisdiction just because he lives in Texas and received the calls while in the state, it said. But he hasn’t pleaded facts to support that the carrier defendants carried any of the calls at issue, nor is the “mere presence of a plaintiff in a state at the time of injury" a sufficient basis for an exercise of personal jurisdiction, it said.

Exhibits in the filing included a declaration of Stacy Graham, trust and assurance policy director at Inteliquent, an Onvoy subsidiary, stating that her search of customer records found that Berken Media and NISHD “are not current or former customers or clients of Onvoy” or any of its direct subsidiaries and that Onvoy has no contractual or other relationship with those entities. Seth Ray, vice president-business operations at Bandwidth, made the same declaration.