DOJ Refutes Defendants' Section 230 Arguments, Upholds TSR Claims in Opposition
None of the arguments from three remaining groups of defendants in an FTC robocall case withstands scrutiny, said DOJ’s opposition (docket 3:23-cv-00313) to the three motions to dismiss Wednesday in U.S. District Court for Southern California in San Diego. DOJ sued on the FTC’s behalf in February (see 2302170050) to stop a network of companies and individuals allegedly responsible for delivering “tens of millions” of unwanted VoIP and ringless voicemail phony debt service robocalls to consumers nationwide.
Stratics Networks provided “substantial assistance to illegal telemarketing” via its SIP termination service, which routed and transmitted outbound calls, including robocalls, said DOJ. Its ringless voicemail platform service enabled its customers to call consumers “en masse and deliver prerecorded messages to consumers’ cell phone voicemail services, ostensibly without causing the recipients’ cell phones to ring,” said the opposition. Stratics also provided the services to telemarketers who it knew “or consciously avoided knowing” were violating do not call rules, said the FTC.
In its motion to dismiss, Atlas defendants argued that though the program they provided was allegedly marketed by them as one that would get consumers out of debt, the complaint doesn't allege the program actually reduced consumers’ debts; therefore, it doesn’t allege it’s a ‘debt relief service,’ and those counts should be dismissed. In the opposition, DOJ said defendants’ argument “amounts to an assertion that the defendants should be exempted from the [Telemarketing Sales Rule] requirements for debt relief services precisely because they did not actually provide the services that they marketed.” The contradictory argument “should be rejected.”
On Stratics’ and Atlas’ motions to dismiss the complaint's TSR claims on the basis that ringless voicemails don’t constitute telephone calls and are not covered by the TSR, DOJ said that argument "would effectively create a loophole for a substantial category of abusive telemarketing practices” and “fails.” The argument that TSR is strictly limited to calls that cause a phone to ring and may be answered in real time by a consumer “improperly relies on purported facts that lie outside the Complaint’s allegations." It's contradicted by the text of the TSR, the rulemaking history of amendments to the TSR, decisions in prior TSR cases, “and decisions under analogous provisions of the Telephone Consumer Protection Act,” DOJ said.
Addressing Stratics’ claims that its SIP termination and ringless voicemail platforms meet the Section 230 definition of an interactive computer service, because they enable users to share messages over its servers, relies on factual claims outside the complaint, said DOJ. It cited National Coalition on Black Civic Participation v. Wohl, saying, “In the absence of allegations affirmatively demonstrating that [the defendant] is a provider or user or an interactive computer service such that it is entitled to immunity, dismissal at this stage is inappropriate.”
Even if Stratics’ services met the definition of an interactive computer service, the company wouldn't be eligible for Section 230 protection because it doesn’t face liability “in its role as a provider or user of a computer service,” which the 9th Circuit said is a requirement for such protection, DOJ said, citing Batzel v. Smith.
The complaint doesn’t attempt to hold Stratics liable as a “’neutral’ vessel for others’ content,” as Stratics argued, said DOJ. Accepting that theory would extend Section 230 protection to autodialers and robocall platforms “merely on grounds that they let their customers upload audio files to a portal for delivery to consumers’ phone numbers -- a result that would be contrary to Section 230’s text and underlying policy goals.”