Not So Small After All: Callfire Uses Common Carrier Defense To Defeat Rinky Dink TCPA Class Action Case

Last month, in Rinky Dink, Inc. v. Electronic Merchant Systems, et al., No 13-cv-01347, 2015 WL 778065 (W.D. Wash. Feb. 24, 2015), online voice and text provider CallFire became one of the first (if not the first) TCPA defendants to avoid liability for pre-recorded calls through the common carrier defense.

The TCPA explicitly provides a "common carrier" exception for fax broadcasters, who are exempt from liability absent a high degree of involvement in or actual knowledge of TCPA violations. 47 C.F.R. § 64.1200(a)(4)(vii). In the telephone context, parties have generally argued that the TCPA, at least implicitly, exempts as "common carriers" entities that act as passive conduits for the calls made or text messages sent. For example, a phone manufacturer or service provider may provide the equipment or signal used to make calls or send text messages, but otherwise plays no role in the call or text. The possibility of a common carrier exception for phone calls and text messages has long been discussed in TCPA defense circles, and has appeared in dicta in a handful of district court orders (generally on motions to dismiss). However, Judge John C. Coughenour in the Western District of Washington appears to be the first, with his Rinky Dink decision, to grant summary judgment on the basis of the common carrier defense in an phone call case. And, what is more interesting, he did so for CallFire, an online voice and text provider, as opposed to the more typical telecommunications providers (i.e., Verizon and AT&T).

Rinky Dink concerned an alleged pre-recorded call campaign conducted by the other named defendant, Electronic Merchant Systems ("EMS"), and run through CallFire's online platform. CallFire was not involved in the creation or content of the messages.

Judge Coughenour drew a hard line from the start of his order, holding that "the TCPA does not apply to common carriers," but rather was intended to apply only to the one initiating the call or sending the text message. Judge Coughenour then set forth an analysis relatively novel to the TCPA. First, he applied a common carrier standard derived from case law evaluating the Communications Act of 1934. And second, he applied the fax broadcaster language found in the FCC's TCPA regulations.

As to the first, Judge Coughenour, citing a D.C. Circuit Court of Appeals case for the definition of a "common carrier," applied the following two-pronged test derived from authority interpreting the...