453 F.Supp.3d 499
D.R.I.2020Background:
- Plaintiff Christopher Laccinole, a Rhode Island resident, alleges he began receiving frequent automated victim-notification calls in Sept. 2019 to his cellular phone and never consented to the service.
- The calls allegedly used an artificial/prerecorded voice and an ATDS, were repetitive (60+ calls; some every 30 seconds; one day 13 hourly calls), and continued after Laccinole sent a cease request to Appriss.
- Laccinole could not unsubscribe himself because the service required a PIN he never received. He had registered his number on the national do-not-call list.
- He sued Appriss asserting: Count I — TCPA §227(b)(1)(A)(iii) (ATDS/prerecorded calls to cell); Count II — TCPA §227(c)/47 C.F.R. §64.1200 (do-not-call); Count III — R.I. Deceptive Trade Practices Act; Count IV — R.I. Privacy Act (unreasonable intrusion into seclusion).
- Appriss moved to dismiss, arguing it is a common carrier (TCPA exemption), that calls were non-commercial or emergency, that DTPA allegations fail, and that the privacy claim is meritless.
- Court disposition: motion denied as to Count I (TCPA §227(b) ATDS/prerecorded) and Count IV (R.I. Privacy Act); motion granted as to Count II (do-not-call) and Count III (DTPA).
Issues:
| Issue | Laccinole's Argument | Appriss's Argument | Held |
|---|---|---|---|
| Whether Appriss is a common carrier exempt from the TCPA | Appriss is operating the victim-notification service but is still liable for automated calls | Appriss says it is a mere conduit/common carrier for RI-VINE and so exempt | Court declined to resolve at pleading stage; relationship is fact-intensive and not decided on 12(b)(6) |
| Whether calls violated TCPA §227(b)(1)(A)(iii) (ATDS or prerecorded to a cell without consent) | Calls used ATDS and prerecorded voice, were non-emergency, to a cell, and continued after revocation of consent | Denies or disputes extent/type of involvement and characterization as ATDS/prerecorded | Pleaded facts (frequency, uniform voice, post‑revocation calls) state a plausible §227(b) claim; Count I survives |
| Whether calls violated TCPA §227(c)/47 C.F.R. §64.1200 (do-not-call/telemarketing) | Calls to a number on the national do-not-call list and failure to provide identifying/unsubscribe procedures | Calls were not telemarketing/solicitations and thus outside §227(c)/§64.1200 | Dismissed: plaintiff did not plausibly allege the calls were for telemarketing/solicitation nor adequately plead procedural failures |
| Whether plaintiff states state-law claims: R.I. DTPA and R.I. Privacy Act (intrusion upon seclusion) | DTPA: Appriss engaged in deceptive practices in trade/commerce; Privacy: repeated unwanted calls amounted to unreasonable intrusion | DTPA: Appriss registered and no deception; Privacy: calls are not an actionable intrusion and plaintiff could ignore/unsubscribe | DTPA claim dismissed for failure to plead consumer/vendor relationship; Privacy Act claim survives as frequency/persistence could be offensive to a reasonable person |
Key Cases Cited
- Payton v. Kale Realty, LLC, 164 F. Supp. 3d 1050 (N.D. Ill. 2016) (discusses common-carrier TCPA exemption)
- Couser v. Pre‑paid Legal Servs., Inc., 994 F. Supp. 2d 1100 (S.D. Cal. 2014) (declining to find provider a non‑liable intermediary at pleading stage)
- Cunningham v. Rapid Response Monitoring Servs., Inc., 251 F. Supp. 3d 1187 (M.D. Tenn. 2017) (violation of 47 C.F.R. § 64.1200(d) can give rise to a § 227(c) claim)
- IFC Credit Corp. v. [Name omitted by district court], 543 F. Supp. 2d 925 (N.D. Ill. 2008) (defining "consumer" in the context of deceptive-practices law)
- DaPonte v. Ocean State Job Lot, Inc., 21 A.3d 248 (R.I. 2011) (R.I. Privacy Act interpretation)
- Pontbriand v. Sundlun, 699 A.2d 856 (R.I. 1997) (legislature afforded protection to privacy interests consistent with Restatement (Second) of Torts §652B)
- Lisnoff v. Stein, 925 F. Supp. 2d 233 (D.R.I. 2013) (example of actionable unreasonable intrusion under R.I. law)