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Tuesday, December 23, 2008

Ind. Decisions - Supreme Court holds the robo-call law applies to all autodialer calls, not just consumer transaction calls with commercial messages

In State of Indiana v. American Family Voices, Inc., Jim Gonzalez, et al, a 9-page, 5-0 opinion, Justice Sullivan writes:

In this case, the State Attorney General attempts to enforce the Indiana Autodialer Law against telemarketers who used autodialers to send pre-recorded messages to Indiana residents. The trial court dismissed the complaint pursuant to Ind. Trial Rule 12(B)(6) because there was no allegation that the telemarketers were making consumer transaction calls with commercial messages. We hold that a complaint filed under this statute is not required to allege that consumer transaction calls are at issue because the law applies to all autodialer calls, not just consumer transaction calls with commercial messages.

The State seeks an injunction prohibiting the defendants American Family Voices, Inc. (“AFV”), Jim Gonzalez, and John Does 2-10 from making telephone calls using an automated dialing-announcing device, civil penalties for each violation, reasonable attorneys fees, and costs against the defendants. The trial court dismissed the lawsuit under the authority of T.R. 12(B)(6) for “failure to state a claim upon which relief can be granted.” The State appealed and petitioned that this Court grant immediate transfer and expedited consideration pursuant to Ind. Appellate Rules 4(A)(2), 21(B), and 56(A). We granted the State’s request transfer under App. R. 56(A). * * *

As can be easily inferred from the presence of the Democratic and Republican State Central Committees as amici in this case, this litigation raises questions as to the extent to which the Autodialer Law limits and may constitutionally limit the use of autodialers to convey political messages. However, all parties agree that no such questions are before this Court at this stage of the litigation and we express no opinion with respect thereto. * * *

We conclude that no language in the statute exempts non-consumer and non-commercial calls from its reach and we decline to read such an exemption into the Law for at least two additional reasons. First, the Legislature provides an exemption for some non-consumer and non- commercial calls in the statute (e.g., messages from school districts to inform parents), from which we infer it intended no exemption for all other non-commercial calls. This reflects the principle of statutory construction known as expressio unius est exclusio alterius – in this case, the Legislature’s exemption of certain specified calls excludes all other calls from that exemption. Second, the Legislature has shown its ability to craft such an exemption in other statutes, see, e.g., I.C. § 24-5-14-8 (placing hour limitations specifically on “commercial telephone solictation”); I.C. § 24-4.7-1-1(categorically exempting certain types of calls from Indiana’s “Do- Not-Call-Law”); and Congress has provided models as well, see, e.g., Telephone Consumer Protection Act, 47 U.S.C.A. § 227(b)(2)(B)(i) (West 2001 & Supp. 2008) (authorizing the FCC to exempt calls not made for commercial purposes from restrictions on making calls using autodialers). Despite these models, the Legislature has not done so here. * * *

For the reasons discussed above, we hold that the State is not required to allege that the defendants made consumer transaction calls with commercial messages using an autodialer in order to defeat a motion to dismiss under T.R. 12(B)(6). The State presented a claim for which relief can be granted for the violations under I.C. § 24-5-14-5(b) alleged in its complaint.

Conclusion. Having previously granted transfer pursuant to App. R. 56(A), the trial court’s dismissal of the State’s complaint is reversed. We remand this case to the trial court for further proceedings.

For background, see these earlier ILB entries.

Posted by Marcia Oddi on December 23, 2008 01:33 PM
Posted to Ind. Sup.Ct. Decisions