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State of Maryland v. Universal Elections

May 25, 2011


The opinion of the court was delivered by: Catherine C. Blake United States District Judge


The State of Maryland has brought this enforcement action against Universal Elections, Inc., Julius Henson, and Rhonda Russell, alleging violations of the Telephone Consumer Protection Act (TCPA), 47 U.S.C. § 227, et seq., in connection with 112,000 anonymous prerecorded telephone calls made to Maryland residents on Election Day, November 2, 2010. Pending before this court is a motion to dismiss filed by the defendants. The issues in this case have been fully briefed and no oral argument is necessary. See Local Rule 105.6 (D. Md. 2010). For the reasons that follow, the motion will be denied.


The State of Maryland has alleged the following facts. Universal Elections is a Maryland limited liability corporation that offers various services to candidates for political office, including broadcasting prerecorded voice messages to voters. (Complaint ¶7.) Julius Henson is an owner and officer of the company, and Rhonda Russell is an employee. (Id. ¶¶8-9). During the 2010 Maryland gubernatorial campaign, the defendants were hired to serve as political consultants by the campaign of candidate Robert L. Ehrlich, Jr. (Id. ¶10.)

On or before Election Day, November 2, 2010, the defendants retained the services of, LLC ("Robodial"), a company based in Media, Pennsylvania that provides a variety of telecommunications services, including voice telephone broadcasting services on behalf of political clients. (Id. ¶11.) Through Robodial's website, the defendants uploaded recordings of the following message:

Hello. I'm calling to let everyone know that Governor O'Malley and President Obama have been successful. Our goals have been met. The polls were correct and we took it back. We're okay. Relax. Everything is fine. The only thing left is to watch it on TV tonight. Congratulations and thank you. (Id. ¶14.) The defendants also uploaded a list of more than 112,000 telephone numbers to which Robodial was instructed to deliver the message. (Id. ¶¶13, 15.) The phone numbers belonged to Maryland residents, the majority of whom were registered Democrats residing in Baltimore City and Prince George's County. (Id. ¶¶12-13.) The message did not identify the caller or disclose on whose behalf the call was being made. (Id. ¶15.) The message also did not disclose the address or phone number of the person or entity that initiated the call. (Id.) On November 2, 2010, the prerecorded voice message was broadcast to the 112,000 phone numbers on the list uploaded by the defendants. (Id.) The State of Maryland alleges that the defendants "omitted the identifying information required by the TCPA in order to disguise the purpose of their calls." (Id. ¶16.) If the defendants had "advised voters that the calls were being made on behalf of the campaign of Robert L. Ehrlich, Jr.," the State alleges, "it would have changed the message conveyed by the calls -- that Governor O'Malley had been successful and did not need the recipients' votes." (Id. ¶16.)

On November 10, 2010, the State of Maryland sued the defendants in this court for violating the TCPA. The defendants filed a motion to dismiss on December 15, 2010, to which the State responded on December 22. The defendants then filed a "Supplemental Motion to Dismiss" on December 28, to which the State responded on January 14. The defendants replied on January 19, and the State surreplied on January 25, 2011.*fn1 On April 15, 2011, with the consent of the parties, the United States moved to intervene and filed a brief in support of the constitutionality of the TCPA. On May 11, 2011, the defendants filed a motion to stay, although the motion has no applicability to the defendants' motion and supplemental motion to dismiss.


"[T]he purpose of Rule 12(b)(6) is to test the sufficiency of a complaint and not to resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses." Presley v. City of Charlottesville, 464 F.3d 480, 483 (4th Cir. 2006) (internal quotation marks and alterations omitted) (quoting Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999)). When ruling on such a motion, the court must "accept the well-pled allegations of the complaint as true," and "construe the facts and reasonable inferences derived therefrom in the light most favorable to the plaintiff." Ibarra v. United States, 120 F.3d 472, 474 (4th Cir. 1997). "Even though the requirements for pleading a proper complaint are substantially aimed at assuring that the defendant be given adequate notice of the nature of a claim being made against him, they also provide criteria for defining issues for trial and for early disposition of inappropriate complaints." Francis v. Giacomelli, 588 F.3d 186, 192(4th Cir. 2009).

To survive a motion to dismiss, the factual allegations of a complaint "must be enough to raise a right to relief above the speculative level, . . . on the assumption that all the allegations in the complaint are true (even if doubtful in fact)." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal citations and alterations omitted). Thus, the plaintiff's obligation is to set forth sufficiently the "grounds of his entitlement to relief," offering more than "labels and conclusions." Id. (internal quotation marks and alterations omitted). "[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not 'show[n]'-'that the pleader is entitled to relief.'" Ashcroft v. Iqbal, -- U.S. --, 129 S. Ct. 1937, 1950 (2009) (quoting Fed. R. Civ. P. 8(a)(2)).


The TCPA makes it unlawful for any person to "make any telephone call using any automatic telephone dialing system . . . that does not comply with the technical and procedural standards prescribed under this subsection, or to use any . . . automatic telephone dialing system in a manner that does not comply with such standards." 47 U.S.C. § 227(d)(1). Among the "technical and procedural standards" provided by the Act are the following:

[A]ll artificial or prerecorded telephone messages (i) shall, at the beginning of the message, state clearly the identity of the business, individual, or other entity initiating the call, and (ii) shall, during or after the message, state clearly the telephone number or address of such business, other entity, or individual[.]

Id. § 227(d)(3)(A). The Act authorizes state attorneys general to bring actions to enforce certain sections of the TCPA, including the identification disclosure requirements in § 227(d). Id. § 227(f)(1). The Act also confers exclusive subject matter jurisdiction on the federal district courts over all such enforcement actions. Id. § 227(f)(2).

The State of Maryland has sued the defendants for failing to comply with the identification requirements when, through Robodial, they sent their Election Day message to 112,000 Maryland residents without providing "the identity of the business, individual, or other entity initiating the call" or "the telephone number or address of such business, other entity, or individual." Id. § 227(d)(3)(A). The defendants admit they hired Robodial, recorded the message, uploaded the message and list of phone numbers to Robodial's website, and instructed that Robodial broadcast the message on Election Day. (Defs.' Mem. at 2.) They also admit that the message did not identify who had initiated the call, or provide that person or entity's contact information. (Defs.' Reply at 2.) Nonetheless, they offer various arguments for why the complaint should be dismissed. The court will address each in turn.

I.Political robocalls are not exempt from the TCPA disclosure requirements

The defendants argue that the disclosure requirements in the TCPA do not apply to "political robocalls" (Defs.' Mem. at 7-8) because the Federal Communications Commission (FCC) has exempted such calls from the requirements of the TCPA. (See Defs.' Reply at 6 (citing 47 C.F.R. § 64.1200(a)(2)(ii)).) Although the FCC has exempted certain calls "not made for a commercial purpose" from a different section of the TCPA-namely, the section requiring "prior express consent of the called party" for certain prerecorded calls, 47 U.S.C. § 227(b)(1)(B)-that exemption does not apply to the identifying requirements of § 227(d). All calls made using an "automatic telephone dialing system," not just calls made for a commercial purpose, must satisfy § 227(d).

The defendants also cite a bill that has been proposed but not enacted that would require that any auto-dialed recorded call that "promotes, supports, attacks, or opposes a candidate for Federal office" must disclose the identity and contact information of the person making the call or causing the call to be made. See Robocall Privacy Act of 2009, S. 1077, 11th Cong. (2009). As discussed above, however, § 227(d) of the TCPA does not exempt political robocalls. The plain language applies to "any telephone call using any automatic telephone dialing system." 47 U.S.C. § 227(d)(1). The fact that an unenacted bill would provide identification requirements specifically for political robocalls does not alter the fact that the Election Day calls fall within the plain language of § 227(d) of the TCPA, and thus are subject to its identification requirements.

II.The defendants can be liable under the TCPA even if Robodial placed the calls

As stated above, the TCPA makes it unlawful for a person to "make any telephone call" that violates the technical standards prescribed by the Act. 47 U.S.C. ยง 227(d)(1)(A). The defendants argue that they cannot be liable under this section because the complaint does not allege that they ...

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