An action was recently filed by an individual claiming that the defendant violated provisions of the Federal Telephone Consumer Protection Act (TCPA) and New York General Business Law (NYGBL). The plaintiff alleged that the defendant made or authorized two calls to the plaintiff’s residential telephone number using an automatic dialing mechanism with a prerecorded message telling the recipient he or she “had been selected to receive a medical alert system and $3,000 in grocery store coupons.”

The calls alleged in the complaint were made from a caller identified as GB Marketing Co. and a caller identified as “Tacoma WA.” The plaintiff claimed that the defendant is responsible for the calls because the medical-alert system referred to in the calls was the defendant’s system and the calls were made by, or on behalf of, or with the authorization of, an authorized dealer of the defendant.

The defendant moved to dismiss the complaint for failure to state a claim and for sanctions against the plaintiff. The TCPA, among other things, makes it unlawful for any person “to initiate any telephone call to any residential telephone line using an artificial or prerecorded voice to deliver a message without the prior express consent of the called party, unless the call is initiated for emergency purposes or is exempted by rule or order by the commission….”

The NYGBL states that whenever telephone calls are placed through the use of an automatic dialing-announcing device, such devices shall do all of the following: State at the beginning of the call the nature of the call and the name of the person or on whose behalf the message is being transmitted; and at the end of the message, state the address and telephone number of the person on whose behalf the message is transmitted…provided such disclosures are not otherwise prohibited or restricted by any federal, state or local law.

The complaint alleged that the defendant engaged authorized dealers to promote the sale of their lifeline systems and the “plaintiff’s robo calls were made by or on behalf of or with the authorization of, an authorized dealer of the defendant. The defendant argued that the plaintiff failed to state a claim under the TCPA because there is no basis to believe that the defendant was responsible for the two calls alleged in the complaint.

The defendant further argued that these allegations were insufficient because they lump the company in with unknown “authorized dealers” and that the plaintiff failed to plead an agency relationship or vicarious liability between the unknown “authorized dealers” and the defendant.

The court pointed out that the complaint did not allege that the authorized dealers made the calls pursuant to a contract with the defendant, but rather that the calls were “made by, or on behalf of, or at the authorization of, an authorized dealer of the defendant.”

The court then went on to say that these allegations are insufficient, as they are too conclusory to state a plausible claim against the defendant. Further, there are no allegations of fact that establish an agency relationship between the defendant and the authorized dealers or any control by the defendant over the dealers. Therefore, the court dismissed the claims under the TCPA. With reference to the NYGBL claim, the court indicated that because it granted the defendant’s motion to dismiss the TCPA claims, it would not exercise supplemental jurisdiction over the alleged violations of NYGBL, pointing out that if the federal claims are dismissed prior to trial, even though not insubstantial in a jurisdictional sense, the state claims should be dismissed as well.

Question: 

Our company has an alarm installed at a subscriber’s residence. A number of false alarms were received from the residence. A representative of our company paid a visit to the subscriber’s residence and, after attempting to explain how to properly arm the system, it became apparent that the subscribers, an elderly couple, had some difficulty remembering how the system works. Thereafter, we received no false alarms, however, the subscribers failed to make the monthly payments. After another visit, it became apparent that the subscribers were instructed, probably by their children, not to arm the system and to discontinue payments for service. What are our rights under our contract? To read the answer, go to SDMmag.com. Click the Columns tab and select Security & the Law.

To ask Les Gold a question, e-mail sdm@bnpmedia.com.

Answer:

Assuming that the subscribers are within a contract or a renewal period, legally you would have the right to pursue the contract balance or at least the loss of profit. Many jurisdictions, however, frown upon the effort to collect on an unpaid balance for the elderly, particularly if they are unable to comprehend either the terms of the contract or do not have the ability to properly utilize the system. Some states have adopted legislation that provides that where the system is a personal emergency response system, and the recipients are unable to make payments on the contract or move to a convalescent facility, they are no longer responsible for the payments. Other than that, authorities in various states or communities frown upon actions against the elderly. 

Various states may have various laws; however, my suggestion is if your subscribers are elderly or unable to understand the contract terms or how the system is to be utilized, attempt to arrive at an amicable resolution but avoid any legal action that might result in an investigation of your company. Better to write it off than be sorry.