The school district is not a person covered by TCPA

Receive automated voicemail messages on your local school district cell phone even if you don’t have kids and told the district to STOP? Solution – bring an action under the Consumer Protection Act by Telephone (TCPA) arguing that even such informational calls to cell phones violate the law when there is no prior express consent .

This was the course of action followed by a frustrated Mr. Alphonso Clark in Alphonso Clark v. Buffalo City School District, 2021 US Dist. LEXIS 235897, United States District Court for the Western District of New York, October 28, 2021. However, Judge John L. Sinatra eventually found the school was over for Mr. Clark’s TCPA cause of action. .

The Court agreed with the respondent that the school district was not a “person” covered by the TCPA. Justice Sinatra noted that the legal definition in 47 USC §153 (39) includes “an individual, partnership, association, corporation, trust or corporation.” Mr. Clark retorted that the term “includes” is “not exclusive to entities like the district”.

The Court agreed that the term “includes” is “generally a term of expansion and not of limitation”, but at the end “simply connotes an illustrative application of the general principle”. Judge Sinatra noted the “traditional canon of construction” (I’ll spare you the Latin nomenclature) maintains that “a word receives more precise content by the neighboring words with which it is associated.” The term “person” is defined “only by reference to private non-governmental entities” and the words that follow “includes” are “illustrative” of a “person” for the purposes of the TCPA. Therefore, “although the list is not exhaustive, it indicates that the meaning of ‘person’ here is limited to private non-governmental entities. The group was therefore dismissed on Mr. Clark’s TCPA cause of action.

© Copyright 2021 Squire Patton Boggs (US) LLPRevue nationale de droit, volume XI, number 344

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