Thursday, July 28, 2011

No Private Right of Action for Communications Decency Act :: Ashland Hospital v. Intl Bro of Electrical Workers 575 (Case Summary)

Background: Plaintiff Ashland Hospital Corporation d/b/a King's Daughters Medical Center (KDMC) filed suit against International Brotherhood of Electrical Workers Local 575 (IBEW),  asserting a "harassment" count citing the Communications Decency Act of 1996 (CDA), 47 U.S.C. § 223 et seq Plaintiff also filed suit against other parties and brought other causes of action (we are just interested in the CDA).

The IBEW decided to "forge a broad grass-roots community based coalition to amplify its message" that KDMC should hire locally. The IBEW launched a robocall campaign against KDMC beginning in June 2010 continuing through the first week of July. The robocall script read
Hello, my name is Kelly and I am confused by King's Daughters Medical Center and the choices they are making here in Scioto County. King's Daughters' CEO Fred Jackson has received bids from several contractors, including one that will put local people to work. Sadly, for the price of a few medical procedures, it appears that KDMC CEO Fred Jackson is going to bring in out-of-town companies and workers to build their new facility. Southern Ohio Medical Center has always committed to using local businesses and local workers, so how can we support a hospital that won't make the same commitment? Please press 1 now to leave a message for Fred Jackson, who received more than $1,150,000 in yearly compensation, and ask him why he would expect you to spend our hard-earned dollars at King's Daughters while he spends his out of town. Thank you.
Calls were allegedly made to residents of Southern Ohio and Northern Kentucky who could then choose whether to connect to Fred Jackson or Howard Harrison at KDMC. Thousands of the Ohio and Kentucky residents contacted opted to connect directly to KDMC in the months of June and July 2010. KDMC alleges that this activity "tied up multiple incoming telephone lines at KDMC's hospital facility."

Procedure:  Defendant's Motion to Dismiss, Rule 12(b)(6), Plaintiff's Communication Decency Act cause of action, 47 USC 233.

Argument: Defendant seeks dismissal on the basis that the CDA is a criminal statute that does not provide individual plaintiffs a private right of action.

Analysis: The Communications Decency Act is a criminal statute that prohibits the making of "obscene or harassing" telecommunications. 47 U.S.C. § 223(a) ("Whoever. . . makes a telephone call. . . without disclosing his identity and with intent to annoy, abuse, threaten, or harass any person at the called number . . . shall be fined under Title 18 or imprisoned not more than two years, or both.") (internal numbering omitted). Although a criminal statute may provide an implied right of action if Congress so intended in enacting the criminal statute, Thompson v. Thompson, 484 U.S. 174, 179 (1988), such will not be the case unless legislative intent can be inferred from the statutory language or elsewhere. It is well settled, however, that the CDA does not authorize a private right of action. Sloan v. Truong, 573 F. Supp. 2d 823, 829 (S.D.N.Y. 2008) (there is no express or implied provision for a private remedy under § 223); see also Osborn v. Salter, No. 5:07CV00016, 2007 WL 1202848, at *1 (W.D. Va. April 23, 2007) ("[T]he authority to enforce the CDA lies with government authorities not with private citizens."); Universal Commc'n Sys., Inc. v. Lycos, Inc., No. 05-11172-REK, 2005 WL 5250032, at *4 (D. Mass. Dec. 21, 2005) ("Section 223 does not . . . provide a private right of action . . . so plaintiffs do not have a claim under this statute."). Where plaintiffs have initiated civil suits under this statute, courts have consistently refused to imply a private right of action. See Croteau v. California, No. 07-CV-588-IEG, 2007 WL 4180831, at *7 (S.D. Cal. Nov. 21, 2007) (no private right of action to recover for damages under 47 U.S.C. § 223); Viola v. A & E Television Networks, 433 F. Supp. 2d 613, 618 (W.D. Pa. 2006) ("[T]he authority to enforce the CDA lies with the proper government authorities and not with a private citizen such as plaintiff.").

Holding: Defendant's Motion to Dismiss Plaintiff's CDA Claim granted.

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