Not ‘Lawful’ to Hold a Phone Company Liable for N.H. Primary Robocalls, Says Lingo

Lingo Telecom, as a simple phone company, doesn’t belong as a defendant in the lawsuit that alleges political consultant Steve Kramer hired robocall broadcaster Life Corp. to send thousands of robocalls two days before the Jan. 23 New Hampshire primary to people they thought were likely Democratic voters, said Lingo’s motion Monday (docket 1:24-cv-00073) in U.S. District Court for New Hampshire in Concord to dismiss the March 14 complaint.

The League of Women Voters and its New Hampshire chapter, plus three voters who received the robocalls, allege the calls featured deepfake simulations of President Joe Biden's voice (see 2403150034). They allege the calls “coercively” stated the falsehood that by participating in the New Hampshire primary, Democratic voters would lose their right to vote in the November general election. They also allege the defendants spoofed the calls to deceive voters into believing they came from a former leader of the local Democratic Party who was known to be spearheading efforts to help Biden win a write-in campaign.

The plaintiffs ask the court to take the “extraordinary” step and hold the phone company liable for the calls placed by Kramer and Life Corp., said Lingo’s memorandum in support of the motion to dismiss. That’s because Lingo offers voice-calling and broadband services, it said.

But Lingo doesn’t “create or place calls,” said the memorandum. There’s no suggestion the company was in on Kramer’s scheme, it said. The most that the plaintiffs can say about the defendant is that the robocalls “transited Lingo’s network and that Lingo did not know that the calls were spoofed,” it said. If that were enough to hold Lingo liable, “then every phone company could be vicariously liable for their customer’s misdeeds,” it said. That’s not -- and can’t be -- the law, it said.

None of the election-law statutes that the plaintiffs invoke “can be read to hold telephone companies liable for calls made by their customers,” said the memorandum. That’s most evident “from the ordinary usage of the words in the statutory text,” it said. If Person A threatens Person B over the phone, nobody would say that the phone company threatened Person B, it said.

The “common-law understanding,” that communications “intermediaries” generally aren’t liable for their customers’ messages, “reinforces that plain meaning,” said the memorandum. Following that plain text “avoids the absurd result of holding telephone companies liable for their customers’ calls even where they have no way to monitor, review, or alter the contents of those calls,” it said.

The plaintiffs’ election-law claims falter on other grounds as well, said the memorandum. They fail to show “proximate causation” by Lingo, it said. They also lack causes of action and fail to overcome Lingo’s statutory immunity under Section 230 of the Communications Act, it said.

The plaintiffs also fail to plausibly allege that Lingo violated the Telephone Consumer Protection Act, said the memorandum. The TCPA authorizes relief against only parties that initiate illegal robocalls, it said. But under the plain meaning of the statute and a “mountain of precedent,” a phone company doesn’t initiate calls, “absent some showing that it was actively involved in an illegal scheme,” it said.

The plaintiffs fail to plausibly allege any facts “suggesting that Lingo was even aware of Kramer’s illegal robocalling scheme, much less actively involved in it,” said the memorandum. The defendant “is a strong supporter of election integrity and the democratic process,” it said. But it’s “neither lawful nor sensible to hold liable a phone company for its customers’ calls where the company did not know, and is legally prohibited from knowing, the contents of those calls, it said. The plaintiffs’ claims against Lingo should be dismissed, it said.