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Political Protest Calls by Live People Did Not Violate the Telephone Consumer Protection Act - Ashland Hospital Corp. v. SEIU

June 21, 2013

Vincent Howard and our Corona consumer protection attorneys have written here recently about the role of the Telephone Consumer Protection Act in protecting ordinary people from excessive telemarketing and "junk faxes." The TCPA makes it illegal to call a cell phone with an automatic dialing machine or using a prerecorded or artificial voice. The plaintiff in Ashland Hospital Corp. v. SEIU, by contrast, was upset by a series of more than 500 calls from live people who were responding to a campaign by the Service Employees International Union to arouse concern about the cost of benefits the hospital was providing to SEIU members. Ashland, doing business as King's Daughters Medical Center, sued under the TCPA, but the district court in Kentucky dismissed the case, finding the TCPA didn't extend to this kind of live-person telephone call. The Sixth Circuit affirmed.

KDMC operates a hospital in Ashland, Kentucky, and was embroiled in a dispute with the SEIU over the cost of employees' health care. The SEIU launched a robo-call campaign in December of 2010, autodialing numbers in the hospital's service area with information about the dispute, then offering listeners a chance to press 1 to be connected to KDMC CEO Fred Jackson. Jackson received 536 calls over two days, each with a different live human on the other end, but each connected via a single number. KDMC's lawsuit asserted claims under the TCPA, reasoning that the SEIU used an automated telephone system to simultaneously engage multiple hospital lines; and interfere with emergency services. The district court ultimately dismissed, finding that the calls to the hospital were made by individuals who had to "exercise independent judgment" to connect with Jackson.

KDMC appealed. The TCPA prohibits auto-dialing or prerecorded or artificial voices to emergency numbers or patient rooms at hospitals, or that engage more than one line of a business at the same time. The hospital argued that this should be read broadly enough to prohibit the SEIU's calls, but the Sixth U.S. Circuit Court of Appeals ultimately disagreed. Under the plain language of the TCPA, the court reasoned, the SEIU did not "make any call" to Jackson or anyone else at the hospital. If Jackson answered the phone, he would have heard a separate live person at the other end of each call. It took more care with the contention that the SEIU "use[d] an automatic telephone dialing system" to make the calls to the hospital, but ultimately concluded that it did not. The calls were from live people who had to start separate communications, the court reasoned. And it felt that Congress drew an important distinction between automated calls and live-dialed calls when it passed the law.

A dissent in this case argued that "any call" may be between a computer and a person. While this dispute was between a corporation and a union, Vincent Howard and our Huntington Beach consumer protection lawyers believe that language has important implications for consumers. If a telemarketer autodialed its own employees, who then pressed 1 to reach a private cell phone that was the actual target of the call, would this be a violation of the TCPA? This case would have implications for any such situation. And while political speech enjoys special protections, it's hard to argue that it's less annoying than marketing calls. At Howard Law, P.C., our Fontana consumer protection attorneys believe the TCPA should be interpreted broadly to stop unwanted telemarketing.

Led by partner Vincent Howard, Howard Law represents Californians ready to fight back against telemarketers and debt collectors who flood them with illegal calls. To learn more or tell us your story, call us today at 1-800-872-5925 or send us an email.

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