RNC Motion to Dismiss: TCPA Plaintiff Entitled to None of the Relief He Seeks

Even if it was, “codified exemptions” to the TCPA “apply to the political text message at issue here, which was sent by a tax-exempt organization,” said the RNC’s memorandum. Even assuming the truth of Howard’s factual allegations, “his TCPA claims must be dismissed with prejudice because they fail as a matter of law, and no amendment could cure their deficiencies,” it said.

Howard’s complaint contends he never gave the RNC consent to contact him by phone using an artificial or prerecorded voice, said the RNC’s memorandum. He “notably” acknowledges the RNC sent him political messages, and the RNC’s text-messaging campaign was to promote its political agenda, it said. On that basis, Howard seeks declaratory and injunctive relief, actual and statutory damages, costs and attorney fees, and certification of the proposed class, it said: “He is entitled to none of this relief.”

Howard’s class action fails to state a valid TCPA claim under Rule 12(b)(6), said the RNC’s memorandum. Though the court must accept all of Howard’s factual allegations as true, that “tenet,” under the 2007 U.S. Supreme Court decision in Bell Atlantic v. Twombly, is “inapplicable to legal conclusions,” said the RNC’s memorandum. Such is Howard’s “failure here, drawing legal conclusions that are unsupported by law,” it said. Taking Howard’s facts as true, he hasn’t pleaded “a facially plausible cause of action under the TCPA,” it said.

Howard’s claim fails “at the threshold” because a text message containing a video link, or an actual video itself, isn’t an artificial or prerecorded voice under the TCPA’s wireless or residential provisions, said the RNC’s memorandum. Though it’s not clear, the RNC assumes the complaint alleges the texted video link, not the text of the message itself, is what purportedly constitutes an artificial or prerecorded voice, it said.

Every court that considered the issue ruled “a text message alone does not constitute a ‘voice’ under the TCPA,” said the RNC’s memorandum. “In any event, FCC regulations make it clear that the political text messages at issue are exempt from TCPA coverage” because they don’t constitute commercial telemarketing, as the statute requires, it said. Howard thus “failed to state a plausible claim for relief under the TCPA,” it said.

Even if the term “prerecorded voice” were ambiguous, both 9th Circuit U.S. Court of Appeals case law and binding FCC interpretations “bolster RNC’s position that a texted video (or video link) is not a prerecorded voice call,” said the RNC’s memorandum. When a statute is ambiguous, the 9th Circuit, and the district courts within it, “defer to FCC interpretations of the TCPA,” it said. The “paradigmatic distinction” between voice calls and text calls “controls the outcome here,” it said. A text call, even with an attached video or video link, can’t be a voice call, it said.

Howard’s “construction” of the TCPA, in which he construes a texted video or video link is an artificial or prerecorded voice, would lead to an “untenable result,” because everyday cellphone usage “would be penalized under the statute,” said the RNC’s memorandum. Under Howard’s “interpretation,” anytime one receives an unwanted family group text, including a video, or a co-worker sends a funny unsolicited YouTube video, such “commonplace” cellphone usage “would be actionable under the TCPA,” it said. This can’t be, and isn’t, “the harm that the TCPA was meant to prevent,” it said.