So I was reading the decision in Gulden v. Liberty Home Guard Llc, No. CV-20-02465-PHX-JZB, 2021 U.S. Dist. LEXIS 33833 (D. Az. Feb. 23, 2021) this morning and I just couldn’t get over how bad the Defendant’s argument was. Until it hit me—this may actually be pretty clever.
In Gulden, the Defendant moved to dismiss a TCPA case alleging that it violated the statute by sending unwanted text messages. The thrust of the argument was that text messages are not calls subject to the TCPA.
Now as any reader of TCPAWorld knows, there are a huge number of cases—including binding Ninth Circuit precedent—to the effect that text messages are calls under the TCPA. The FCC has so held as well. So a Defendant arguing otherwise to a court within the Ninth Circuit feels really close to frivolous (i.e. sanctionable.) Especially since the Defendant’s argument was essentially “come on, Judge.”
No really, this was Defendant’s argument according to the decision:
Defendant fails to cite any law in support of its position that a text message is not a “call” for purposes of the TCPA. Instead, Defendant merely argues “reasonable people would be led to believe that the word call means a telephone call, not a text message.
Any litigator reading this is going to cringe because legal argument doesn’t come down to “what reasonable people believe”—that would make the law logical and useful—no, it comes down to what legislators, agencies and judges have said about it in the past. That’s called precedent. And Defendant had none of it. So Defendant was 100% certain to lose the argument, and it basically forced the court to waste its time responding to it.
But just as I opened the blog to cream Defendant for its ridiculous argument—yes, folks, text messages are calls subject to the TCPA and it is really not even debatable—it dawned on me: things might be about to change.
Remember that oral argument in Facebook I live-blogged that everyone in the world read? Well, one of the benefits of my live blog and analysis that you won’t find anywhere else is that I caught an interesting little nuance.
About six minutes into the argument Justice Thomas asked Facebook’s counsel, the Paul Clement, whether texts were calls to begin with under the TCPA. Although the exchange was short-lived, Clement very clearly advised the Court that it could avoid the whole sticky ATDS issue by simply finding that texts were not subject to the TCPA to begin with (an issue, BTW that was never even raised in Facebook’s brief because… its not even debatable.)
So it is possible—not likely or probable—but possible that the Supreme Court resolves Facebook by deciding that text messages are not calls to begin with. And that would make the Defendant’s argument in Gulden just crazy enough to work.
So maybe TCPA defendants shouldn’t give up on the argument altogether just yet.
That said, this is a real long shot. Again, every case to address the issue has determined text messages are calls. The FCC has so said. And the Supreme Court did not ask for further briefing on the subject, which consumed all of 14 seconds of discussion during oral argument.
Still, though, I’m telling you there’s a chance.
© Copyright 2022 Squire Patton Boggs (US) LLPNational Law Review, Volume XI, Number 55