Ramaswamy Judge Asks Whether to Refer TCPA Exceptions Question to FCC

U.S. District Judge Michael Watson for Southern Ohio in Columbus reserved ruling in part and denied in part Vivek Ramaswamy’s March 21 and April 1 motions to dismiss Thomas Grant’s Telephone Consumer Protection Act complaint, said the judge’s signed opinion and order Friday (docket 2:24-cv-00281).

Grant alleges that Ramaswamy, who suspended his campaign for the Republican presidential nomination Jan. 15, placed prerecorded calls to consumers’ cellphones to promote his telephonic town hall events without first obtaining their prior express consent (see 2401240002).

Grant seeks to hold Ramaswamy personally liable for the unlawful calls on grounds that he did nothing to stop his campaign from placing the calls. Ramaswamy contends that the campaign, Vivek 2024, is the proper party that the plaintiff should be suing and that he can’t be held personally responsible for the conduct of the campaign’s third-party phone vendors (see 2405070038).

On Ramaswamy’s motion to dismiss for lack of standing, the court has already addressed his standing arguments and found them without merit at the pleadings stage, so that portion of the motion to dismiss is denied, said the judge’s order. The defendant argues that Grant hasn’t alleged a basis for holding Ramaswamy liable, either directly or vicariously, for the alleged violations, and that the calls are exempted from the TCPA's statutory protections, it said.

Because the court concludes that Grant has alleged a basis for vicarious liability, the court doesn’t consider whether Ramaswamy may also be directly liable, said the order. “At a minimum,” the complaint “contains enough factual allegations to support vicarious liability based on ratification,” it said. Ratification occurs when an agent acts for the principal's benefit and the principal doesn’t repudiate the agent's actions. Grant’s allegations “raise a reasonable inference” that Ramaswamy knew about the calls and didn’t “repudiate them,” said the order.

Ramaswamy also argues that the calls Grant received are exempt from the TCPA's restrictions under certain regulatory exemptions in the statute. The plaintiff contends that the TCPA’s exemptions apply to only calls made to residential phone numbers. But Ramaswamy points out that courts and the FCC often treat residential phone numbers and personal cellphone numbers as synonymous for purposes of the TCPA, such that the exemptions also apply to calls made to cellular phone numbers.

Both parties agree that whether the exemptions apply in this case hinges on whether the exemptions apply to calls made to cellphones, said the order. The court reserves ruling on this issue, it said.

The court is concerned that whether the exemptions apply to calls made to cellphone numbers is the type of question that should be referred to the FCC under the primary jurisdiction doctrine, said the order. But the parties haven’t briefed this issue, so the judge ordered Grant’s opening brief on the issue of primary jurisdiction to be filed by May 31, with Ramaswamy’s response due 21 days later.

On the motion to dismiss for failure to join a party under Rule 19, the defendant argues that the Vivek 2024 campaign, not Ramaswamy the individual, is the proper defendant, said the order. But Ramaswamy doesn’t argue or suggest that the campaign couldn’t be “properly joined,” it said.

If joinder is feasible, there’s "no need to dismiss the complaint," said the order. Because Ramaswamy has provided the court with no basis to conclude that joinder isn’t feasible, his motion to dismiss for failure to join a party under Rule 19 is denied, it said. If Ramaswamy still believes the campaign should be joined, he may make an appropriate motion under Rule 19, it said.