Court’s Dismissal of TCPA’s Prohibitions Was ‘Abdication of Judicial Duty,’ Says Appeal

The Telephone Consumer Protection Act “protects Americans’ right to privacy,” and the district court’s Nov. 6 opinion dismissing plaintiff Jacob Howard’s complaint against the Republican National Committee (see 2311150003), “must be reversed, so that it continues” to protect that right, said Howard’s opening brief Wednesday (docket 23-3826) in the 9th U.S. Circuit Court of Appeals.

Howard’s appeal alleges that the RNC sent him unsolicited text messages with video files that downloaded automatically to his phone and contained artificial or prerecorded voices, in violation of the TCPA. But U.S. District Judge Steven Logan for Arizona in Phoenix held that the text messages weren’t actionable under the TCPA because the downloaded videos didn’t automatically begin playing. The messages therefore “provided a conscious choice of whether to engage with the audible component” of the downloaded video, but that was different “from what the TCPA intended” by barring calls using a prerecorded voice, said his order.

Howard contends that the district court erred by granting RNC’s motion to dismiss, when the complaint “alleged everything to state claims” under the TCPA, said his opening brief. The district court also erred by deferring to an FCC interpretation of the TCPA that doesn’t exist and concluding that the major questions doctrine doesn’t apply to RNC’s affirmative defense, it said. The district court also wrongly resolved fact issues and decided that the RNC’s affirmative defenses barred Howard’s claim at the motion to dismiss stage, it said.

The district court interpreted the TCPA “in a way that Congress could never have intended,” said the brief. The court held that the RNC didn’t violate the statute when it sent an MMS text message to Howard’s cellphone that placed a digital video file, with audible sound, on the phone, it said.

Even though the TCPA bans all unwanted calls, including text messages sent via MMS that include a prerecorded or artificial voice, the district court dismissed Howard’s complaint, said the brief. “That simply cannot be,” it said. The district court “abdicated its responsibility to decide this case,” it said.

Under the district court’s opinion, anyone who merely writes the words “tax-exempt nonprofit organization” in a motion to dismiss “has a complete defense to a claim” under the TCPA that approaches "absolute immunity,” said the brief. The district court reached its erroneous conclusions “through a combination of statutory interpretation mistakes, misapplication of the Federal Rules of Civil Procedure, and unwarranted deference to an agency that didn’t actually provide RNC with an affirmative defense to the TCPA,” it said.

Rather than interpreting the TCPA broadly “as the remedial statute it is,” the district court “narrowed its breadth by adding non-existent language to the statute,” imposing its own policy over Congress’ words, and misapplying controlling case law, said the brief. The most “egregious policy choice” that the district court made was that Americans should just ignore all text calls via MMS even if they violate the TCPA, it said. The district court’s dismissal of the TCPA’s prohibitions was “an abdication of judicial duty,” it said.

The 9th Circuit should vacate the district court’s opinion and remand the case back to that court, said the brief. It also should order the district court to require RNC to immediately file an answer and to participate in discovery, it said.