378 F. Supp. 3d 741
W.D. Wis.2019Background
- Plaintiff Craig Cunningham received multiple unsolicited robocalls to his cell phones between 2015–2018 and sues under the TCPA; defendants do not dispute the calls violated the TCPA but dispute their liability.
- Defendant Michael Montes owned TollFreeZone.com, which sold customers access to a third‑party auto‑dialing platform (dialer.TO); Montes alone performed TollFreeZone functions and sometimes assisted or ran clients’ campaigns.
- Some callers who contacted Cunningham (e.g., Jerry Maurer, Rich Holman, 8 Figure Dream Lifestyle, Elite Marketing Alliance, Enagic, Tidom) were confirmed TollFreeZone clients; other caller names appeared on TollFreeZone’s website or drop‑down menus.
- Montes provided user accounts, training materials, technical support, and occasionally uploaded lists/recordings and launched campaigns for clients; he did not normally control message content but sometimes wrote scripts and blocked calls to certain states. Montes also had notice of unlawful uses of his service.
- Defendants moved for summary judgment arguing (1) Cunningham lacks standing, (2) no evidence calls went through TollFreeZone, (3) Montes/TollFreeZone did not “make” the calls under the TCPA, and (4) § 230 CDA immunity shields them. The court granted dismissal for three nominal defendants (MyDataGuys.com, PodMusicGear.com, EmailMyVmail.com) but denied summary judgment as to Montes and TollFreeZone.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Article III standing (injury‑in‑fact) | Cunningham asserts the unsolicited robocalls are a concrete privacy injury warranting suit. | Defendants argue Cunningham is a "professional" TCPA plaintiff who welcomes calls and thus suffered no injury. | Court: Standing exists; plaintiff's filing history and not registering on DNC do not negate injury. |
| Whether calls came through TollFreeZone | Cunningham points to circumstantial evidence: known TollFreeZone clients placed calls and some caller names appear on TollFreeZone site; loss of records due to defendants' spoliation. | Defendants say no direct evidence links specific calls to TollFreeZone and clients could have used other platforms. | Court: Genuine factual dispute; circumstantial evidence permits inference calls came through TollFreeZone. |
| Whether Montes/TollFreeZone “made” or initiated calls (TCPA liability) | Montes was closely involved for some campaigns (setup, training, uploading, launching, occasionally scripting) and had knowledge of unlawful uses—thus can be deemed to have made calls under FCC factors. | Defendants say they merely provided a platform; clients actually made the calls, so defendants cannot be liable. | Court: Denied summary judgment—evidence supports reasonable jury finding Montes/TollFreeZone may have ‘‘made’’ or knowingly allowed unlawful calls per 2015 FCC framework. |
| CDA §230 immunity | Cunningham argues TCPA claims target conduct (unwanted calls), not content, and Montes exercised control, so §230 does not apply. | Defendants claim §230 shields interactive computer services from liability for third‑party content. | Court: §230 inapplicable here; TCPA addresses non‑content harms and Montes’s alleged control negates immunity. |
Key Cases Cited
- Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (summary judgment standard and inference rules)
- Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (Article III standing and concrete injury analysis)
- Havens Realty Corp. v. Coleman, 455 U.S. 363 (standing for testers; injury not negated by plaintiff’s purpose)
- Murray v. GMAC Mortg. Corp., 434 F.3d 948 (professional plaintiff does not lack standing)
- CE Design, Ltd. v. Prism Bus. Media, Inc., 606 F.3d 443 (agency orders as binding precedent considerations)
- Nunes v. Twitter, Inc., 194 F. Supp. 3d 959 (distinguishing content‑based publisher immunity from nuisance-like TCPA claims)
- ACA Int'l v. Fed. Commc'ns Comm'n, 885 F.3d 687 (review of FCC TCPA rulemaking relevant to scope of certain FCC orders)