Uber Lobbying Calls Not Actionable as Consumer Class

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By Jimmy H. Koo

Dec. 14 — Uber Technologies Inc. Dec. 11 escaped a putative class action alleging it violated the Telephone Consumer Protection Act by making automated phone calls with prerecorded messages opposing a certain legislation supported by New York City Mayor Bill de Blasio (Bank v. Uber Techs., Inc., 2015 BL 407419, E.D.N.Y., No. 1:15-cv-04858-JG-JO, 12/11/15).

Judge John Gleeson of the U.S. District Court for the Eastern District of New York said that Uber's robocalls “clearly adhered to” the Federal Communications Commission's requirements for political speech exemptions under the TCPA, 47 U.S.C. § 227.

According to pro se plaintiff Todd Bank, in July 2015, he received four robocalls from Uber on his residential telephone line, with prerecorded messages urging people to oppose de Blasio's “anti-Uber bill.” According to the plaintiff, Uber made “thousands of robocalls” to purported class members without their prior written consent.

Seeking to dismiss the suit, Uber argued that the robocalls were “noncommercial, political calls exempt from TCPA liability.” The court agreed.

Although the TCPA doesn't identify specific exemptions to liability, it authorizes the FCC to prescribe implementing regulations, the court said. In 2012, the FCC determined that calls made for political reasons are exemption from the TCPA, provided that the caller abides by certain identification requirements (11 PVLR 1408, 9/17/12)(179 Privacy Law Watch, 9/17/12).

Specifically, the court said, to be exempt from liability, the caller must provide: (1) the name or entity responsible for the calls at the beginning of the message; (2) the business entity's official name; and (3) the telephone number of the entity or person responsible for the call.

The court concluded that Uber's calls were political in nature that satisfied all of the requirements set forth by the FCC. The court also rejected the plaintiff's argument that certain portions of the robocalls qualified as advertisements under the TCPA. “Such a broad reading of the term ‘advertisement' would gut the exemption the FCC carved out for political speech,” the court said.

Bank represented himself. Morrison & Foerster LLP represented Uber.

To contact the reporter on this story: Jimmy H. Koo in Washington at jkoo@bna.com

To contact the editor responsible for this story: Donald G. Aplin at daplin@bna.com