VoIP Vendor Not Secondarily Liable for Caller’s Alleged TCPA Violations

A federal district court recently held that a vendor of a voice over internet protocol (“VoIP”) service that allows callers to circumvent caller identification by displaying an inaccurate number is not secondarily liable for the alleged Telephone Consumer Protection Act ("TCPA") violations of the caller who uses said service. 

In Clark v. Avatar Techs. PHL, Inc., No. 13-2777 (S.D. Tex. Jan. 28, 2014), the plaintiff alleged that the caller used an automatic telephone dialing system (ATDS) to place pre-recorded calls to him and also used a VoIP service which caused an inaccurate number to be displayed on his caller ID.  The plaintiff asserted TCPA claims against both the caller and the vendor of the VoIP service. The latter moved to dismiss the claim, arguing that it did not “make any call” as required by the TCPA.

The plaintiff conceded that the vendor did not “make any call[s]” but sought to impose TCPA liability based on a conspiracy theory.  The court rejected this basis for holding the vendor liable, finding that the TCPA does not allow for co-conspirator liability:

Plaintiff cites no legal authority to support the assertion that TCPA liability can be based on an alleged conspiracy, and this Court is aware of none. It is undisputed that the plain language of the statute does not specifically allow for such secondary liability. As a result, the Court declines to expand liability under the TCPA to a telecommunications carrier who is alleged to have conspired with the defendant who Plaintiff claims actually made the call.

Although the court dismissed the plaintiff’s conspiracy-based claim with prejudice, it allowed the plaintiff to amend his complaint to assert an independent claim against the vendor under Section 227(e) of the TCPA.  Section 227(e) provides that it is “unlawful for any person within the United States, in connection with any telecommunications service or IP-enabled voice service, to cause any caller identification service to knowingly transmit misleading or inaccurate caller identification information with the intent to defraud, cause harm, or wrongfully obtain anything of value.”  The court noted that this practice (called “spoofing”) has “both improper and legitimate applications” and is only prohibited if it is “intended to do harm.” Because plaintiff did not previously assert § 227(e) as the basis for his TCPA claim, the court granted him leave to do so.

For more information on this topic or the TCPA generally, please contact Katherine Olson at 312-334-3444 or kolson@messerstrickler.com.