RNC Motion to Dismiss Addresses ‘Imaginary’ TCPA Suit, Should Be Denied: Plaintiff

Howard’s complaint alleges the RNC sent him an unwanted text message that contained an MP4 file with audio and visual components, said his opposition. The text he received shows a screenshot of Ivanka Trump that’s “the first frame of a prerecorded video in which she speaks, using her voice, which can be audibly heard,” it said.

That video file was placed on all the class members’ cellphones, “a gross violation of the right to privacy and solitude protected by the TCPA,” said Howard’s opposition. The RNC didn’t text Howard a link to an internet video, as it contends in its motion to dismiss, “and it should be sanctioned if it continues to contend otherwise in its reply to this response,” it said.

The RNC’s motion to dismiss “brazenly asks” the court to “ignore the plain language that Congress used in the TCPA that bars all unwanted text messages that include a prerecorded or artificial voice,” said Howard’s opposition. It also asks the court to ignore “clear and controlling” U.S. Supreme Court and 9th Circuit U.S. Court of Appeals authority, it said. That authority says text messages are “calls” under the TCPA, and a text message that leaves prerecorded audio on a person’s phone, like the call alleged in Howard’s complaint, violates the TCPA, it said.

The RNC’s motion to dismiss also wrongly asks the court to “enforce regulations promulgated by unelected bureaucrats in an unaccountable federal administrative agency” at the FCC, said Howard’s opposition. The RNC did so to “escape the liability that Congress imposed, by enacting the TCPA, on robotexters who violate Americans’ right to privacy and solitude,” it said. The RNC is leading this court “into reversible error,” it said.

Congress allowed the FCC to exempt only tax-exempt nonprofits from the TCPA’s do not call provisions, said Howard’s opposition. But the FCC erroneously took an “indiscriminate approach” to promulgating exemptions, and exempted all tax-exempt nonprofits from liability under the TCPA “without considering the multifaceted aspects of such organizations,” it said. Allowing an agency to undermine the TCPA, without congressional approval to exempt favored callers like RNC, “would completely undermine the democratic process,” it said.

The RNC's motion to dismiss "also attempts to prematurely litigate affirmative defenses," and it should be denied on that basis, said Howard's opposition. There are "fact issues" regarding whether the RNC qualifies as a tax-exempt nonprofit, either under the tax code or the TCPA itself, it said.

If the court interprets the TCPA as the RNC urges, "it will create significant constitutional issues under the major questions doctrine and the First Amendment," said Howard's opposition. The same goes for the RNC’s argument that the Hobbs Act “somehow bars this Article III Court from reviewing FCC regulations and exculpates RNC,” based on its ipse dixit ("he himself said it") that it’s a tax-exempt nonprofit, it said. The court “should avoid these traps and apply the doctrine of constitutional avoidance,” it said.