TCPA Claims Barred for Exceeding FCC’s ‘Delegated Authority,’ Says Spectrum
Plaintiff Judy Mulvihill and her putative class members are barred from asserting their Telephone Consumer Protection Act claims against Spectrum in U.S. District Court for South Carolina in Greenville “to the extent their claims are subject to a binding arbitration…
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agreement” and an agreement to arbitrate their disputes on an individual, non-class basis, said Spectrum’s answer Thursday (docket 6:23-cv-03542) to Mulvihill’s July 21 complaint. Mulvihill alleges Spectrum called her cellphone repeatedly and left prerecorded voice mails, seeking to reach Zachary Kelly, a person unknown to her, about a pending service interruption. Mulvihill’s claims also are barred because Spectrum “possessed a good faith belief that it had consent to call the numbers at issue,” said its answer. Spectrum also contends Mulvihill didn’t suffer “actual constitutional injury” due to its alleged TCPA misconduct and therefore doesn’t have standing, it said. Any damages, injury, violation or wrongdoing alleged in the complaint was caused by third parties, for which Spectrum can’t be held vicariously liable, said its answer. To the extent “contractors” engaged in the conduct alleged in the complaint, those vendors “acted outside the scope or in violation of the parties’ agreements,” and Spectrum didn’t “approve of that conduct,” it said. The application of the TCPA on which the complaint is based, including imposition of statutory damages on Spectrum, would violate the due process provisions of the Constitution, it said. Certain definitions contained in the TCPA also render the statute “unconstitutionally vague,” and the statutory penalties Mulvihill seeks are unconstitutionally “excessive,” it said. Mulvihill’s TCPA claims also are barred “to the extent they are based on regulations or rulings that exceed the FCC’s delegated authority,” said Spectrum. “Nor can the Hobbs Act be validly or constitutionally applied” to preclude Spectrum from raising defenses to an action “arising under the TCPA or rules or regulations promulgated thereunder,” it said.