Well folks, its campaign season.

I know that for some this time of year is like the Oscars and the Superbowl put together but for most of us its just that time of year when we have to worry about another type of unwanted Robocall—the political candidate message. And I know, I know—I’m the guy who says the First Amendment protects this speech (and it does) but it annoys me just as much as it annoys you.

But getting to the point—in case all of you aspiring politicians out there hadn’t heard—the TCPA does apply to your campaign messages. That means you cannot just mass blast folks with your compelling “vote for me texts” without express consent.  If you do you could face a massive lawsuit (as we’re about to discuss) costing your campaign (and maybe you) $500.00 per text. Worse yet, if you randomly spam people with robotexts maybe they’ll vote for the other gal/guy to get even. Bad politics. (BTW, why are politicans and pot dealers the only two groups that haven’t figured out the TCPA applies to them yet? hmmm.)

The case of  Klueh v. Vallas, Case No. 19-cv-00249, 2020 U.S. Dist. LEXIS 152979 (N.D. Ill. August 24, 2020) highlights just how dangerous TCPA suits can be for political candidates and the platforms they use. In Klueh the Defendant—the Link2Tek text platform—moved to dismiss a TCPA suit asserting that its system is not an ATDS subject to the TCPA and that it cannot be held directly responsible for the messages of a political candidate using its system. Spoiler alert: it does not end well.

On the ATDS issue, the Defendant should have been extremely well positioned in light of the Seventh Circuit’s decision in Gadelhak seemingly requiring that a system is only an ATDS if it uses a random or sequential number generator to produce and dial numbers. But bad facts make bad law and hubris always causes trouble. Rather than move to stay the case pending Facebook—as I have been saying over and over again—the Defendant decided to move to dismiss the case, highlighting a critical common issue across the class and risking creating bad case law when the Supreme Court is set to clarify the definition of ATDS in a few short months. Why?

In reviewing the facts the Court noted that the texts at issue—goofy campaign fluff for a Chicago mayoral candidate—allegedly lead to over 4000 complaints. 4000.

More problematically, the Court noted that Link2Tek focused it arguments on how the texts were allegedly sent—i.e. from a list—but did not argue about the system’s lack of capacity to generate numbers randomly or sequentially. In analyzing this issue the Court read Gadelhak narrowly—much more narrowly than other cases—and concluded that how the texts were sent is not the issue; rather it is the capacity of the system to generate random numbers that matters. Here’s the key language:

However, whether Link2Tek’s system had that capacity as a general matter is a different question from whether the system employed that capacity in sending the messages in question…[and] the allegations also do not directly suggest that Link2Tek’s platform lacks that capacity.

Uh oh. So now we’re back to capacity. And did this case just undo the great work in Mosley v. General Revenue Corp., Civil Action No. 1:20-cv-01012-JES-JEH, 2020 U.S. Dist. LEXIS 127055 (C.D. Ill. July 20, 2020)? I can’t bear to think of it.

Making matters worse(!), the Court made short work of Link2Tek’s paper mache arguments that the FCC’s recent P2P texting order compelled judgment in its favor. The Court took the opportunity to read the FCC’s ruling very narrowly—ignoring the more expansive components of the ruling—as merely clarifying “general principles but declined to resolve factual issues about any particular platform.” And the requirement that a system operate randomly or sequentially was, apparently, not one of the “general principles” clarified by the FCC, according to the Kleuh court. Plus, the Court wonders aloud whether the ruling was even a final agency determination entitled to Hobbs Act deference:

“The finality of the order is unclear, for two reasons. First, it is unclear whether the ruling is subject to, or actually on, review by the full Commission. Second, the ruling itself notes that “[t]he details of the Commission’s interpretation of the autodialer definition remain pending in the wake of [ACA International] . . . . The Bureau sought renewed comment on the definition of an ‘autodialer.’ . . . Until that issue is decided by the Commission, we rely on the statutory definition of autodialer.”

So basically now none of us can ever safely rely on the new FCC ruling again because a platform lobbed it at a court at the pleadings stage in a case where the functionalities of the system weren’t even pleaded and the messages at issue generated 4,000 complaints. Great.

But it gets better (in an ironic “better means worse” kind of way).

Link2Tek also argued that despite the Plaintiff’s rather direct allegations that it sent the texts at issue it was not liable for the candidate’s TCPA violations because it had merely “transmitted” the messages and hadn’t “initiated” them. The Court was having none of it: “The complaint sufficiently alleges that Link2Tek sent or initiated the text messages in question.”

Notably there is no discussion in the ruling of the FCC’s critical Glide vs. YouMail distinction, which seems to have been wholly overlooked. Rather the Court simply observes that the platform was allegedly used to send the texts, and that was sufficient—without anything further—to deem the Defendant liable directly for the messages.

The ruling in Klueh is powerfully out of step with the bulk of case law addressing platform liability in TCPA cases which tend, at a minimum, to require some element of knowledge on the part of the platform that the message was illegal before imposing liability. Indeed, it was not long ago that platforms were almost universally insulated from liability. The current expansion of platform liability began with the Hurley v Messer decision and has been steadily taking hold under certain circumstances but Klueh is the first case to seemingly hold that platforms may always liable for messages they send on behalf of their clients simply because they sent them.

Horrifying. Scary. Terrible. Ugh.

Hopefully Klueh –to the extent it is applied at all—will be confirmed to application at the pleadings stage (and that’s still a pretty big blow to TCPA platform defendants). It remains to be seen if this case will gain any traction or simply be an outlier. Bottom line, however, this is was a real swing and a miss by Link2Tek and it begs the question why they didn’t simply seek a stay pending Facebook.

One final note for the curious. I am often asked by aspiring politicians, and others, can’t I get away with my texts since only the campaign will be liable and it will evaporate once the election is over? I won’t give you free advice on this point TCPAWorld—sorry, some of this stuff I have to get paid for :)– but there is a really interesting little discussion in Klueh that is worth taking a look at:

“Given the questions surrounding the status of the campaign and whether the campaign is participating in the litigation, to the extent that the campaign may be pursuing the motion to dismiss, the motion is denied without prejudice to renewal once the parties have clarified the status of the campaign, its participation in the litigation, and any effect of its status on whether the motion should be resolved on the merits. The parties should consider the appropriate path forward with respect to the campaign, confer, and inform the court of any next steps they propose in a status report due September 18, 2020.”

We’ll see what they come back with.