Ashland Hosp. Corp. v. Serv. Emps. Int'l Union

• Citation: 708 F.3d 737
• Decision Date: 10 April 2013
• Docket Number: No. 11–6006.,11–6006.
• Parties: ASHLAND HOSPITAL CORPORATION, d/b/a King's Daughters Medical Center, Plaintiff–Appellant, v. SERVICE EMPLOYEES INTERNATIONAL UNION, DISTRICT 1199 WV/KY/OH, Defendant–Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

708 F.3d 737

ASHLAND HOSPITAL CORPORATION, d/b/a King's Daughters Medical Center, Plaintiff–Appellant,

v.SERVICE EMPLOYEES INTERNATIONAL UNION, DISTRICT 1199 WV/KY/OH, Defendant–Appellee.

No. 11–6006.

United States Court of Appeals,Sixth Circuit.

Argued: Oct. 3, 2012.

Decided and Filed: Feb. 21, 2013.

Rehearing and Rehearing En Banc Denied April 10, 2013.^*

ARGUED:W. Mitchell Hall, Jr., VanAntwerp, Monge, Jones, Edwards & McCann, LLP, Ashland, Kentucky, for Appellant. Benjamin S. Basil, Priddy, Cutler, Miller & Meade PLLC, Louisville, Kentucky, for Appellee. ON BRIEF:W. Mitchell Hall, Jr., Leigh Gross Latherow, Christina D. Dajjar, VanAntwerp, Monge, Jones, Edwards & McCann, LLP, Ashland, Kentucky, for Appellant. Don Meade, Priddy, Cutler, Miller & Meade PLLC, Louisville, Kentucky, for Appellee.

Before: MOORE and COLE, Circuit Judges; ROSE, District Judge. ^**

COLE, J., delivered the opinion of the court, in which MOORE, J., joined. ROSE, D.J. (pp. 745–47), delivered a separate dissenting opinion.

OPINION

COLE, Circuit Judge.

This case turns on the reach of two provisions of the Telephone Consumer Protection Act of 1991 (“TCPA” or “Act”), 47 U.S.C. § 227. The Act bans certain abuses of telephone technology that threaten the privacy of our homes and businesses. Ashland Hospital Corporation, doing business as King's Daughters Medical Center (“KDMC”), brought suit against the Service Employees International Union (“SEIU”), District 1199 WV/KY/OH, to enjoin an automated “robo-call” campaign that contacted private residents in their homes with a prerecorded message offering to help connect them to KDMC to express concerns over the treatment of hospital employees. The campaign resulted in hundreds of live calls to hospital lines. The question for decision is whether these factual allegations state a plausible claim for relief under the TCPA. In particular, we must decide whether the allegations show that the SEIU “ma[de] any call” to emergency lines or “use[d] an automatic telephone dialing system in such a way that two or more” hospital lines were engaged simultaneously within the meaning of the Act. Because we conclude that they do not, we affirm.

I.

This case grew out of a labor dispute between the parties. KDMC is a not-for-profit corporation that owns and operates a regional medical center, including a hospital facility, in Ashland, Kentucky. The SEIU is a labor union that represents thousands of health care and social service workers throughout West Virginia, Kentucky, and Ohio. Some of these workers are employed at KDMC, and the parties have entered into a collective bargaining agreement as a result.

In December 2010, the SEIU expressed concerns regarding the cost of health care for KDMC employees. The dispute quickly came to a head when the SEIU launched a two-day robo-call campaign targeting KDMC. The purpose of the campaign was to publicly protest proposed management decisions that would shift a larger cost burden onto employees. Residents within KDMC's service area received calls from an automated system that played a prerecorded voice message criticizing KDMC's plans in dramatic terms. The campaign specifically targeted KDMC CEO Fred Jackson:

Imagine you're at the hospital alone in pain waiting to be seen; waiting and waiting. What could possibly be taking so long? King's Daughters Medical Center CEO Fred Jackson laid off over 100 hospital employees, paid hospital executives bonuses worth over one million dollars, and took over 1.1 million in salary and other perks for himself. Now Jackson plans to cut health care for hospital employees. That's just not right. Press “1” now to call CEO Fred Jackson and tell him to stop putting our families' health care at risk.

The message did not disclose that the SEIU was responsible for the call. Residents who elected to press “1” were patched through to Jackson's direct extensionat KDMC. The call logs at KDMC indicated that each of the patched-through calls originated from a single telephone number in or near Columbus, Ohio.

As a consequence of the robo-call campaign, KDMC alleges that Jackson's extension received 536 live calls over the two-day period from area residents. KDMC further alleges that the high volume of incoming calls to Jackson's extension overwhelmed its main trunk lines, which support calls to and from emergency services, patient rooms, and all other extensions within its system.

KDMC responded by commencing this action against the SEIU in the Eastern District of Kentucky to enjoin the campaign. Based on the above facts, KDMC asserted claims under the TCPA, the Communications Decency Act of 1996, and state tort law, though the latter two claims have since been abandoned. KDMC identified several supposedly relevant provisions of the TCPA. In its complaint, KDMC alleged that the SEIU “ma[de] calls using an automatic telephone dialing system” that interfered with the hospital's emergency lines, in violation of § 227(b)(1)(A); and that the SEIU “use[d] an automatic telephone dialing system in such a way” that simultaneously engaged multiple hospital lines, in violation of § 227(b)(1)(D). In addition, KDMC alleged that the SEIU initiated calls to residential lines using a prerecorded message without prior express consent, in violation of § 227(b)(1)(B); and that the SEIU failed to comply with identification and disclosure requirements, in violation of § 227(d)(3)(A).

The SEIU moved to dismiss the complaint. With respect to the TCPA, the SEIU maintained that KDMC had failed to state a claim upon which relief could be granted because the calls made to hospital lines did not fall within the ambit of the Act. The district court agreed and issued a dismissal pursuant to Rule 12(b)(6). The court concluded that “the reach of the TCPA is narrowly confined ... to the perils of automated and prerecorded calls,” and does not extend to “purposeful calls made by individuals seeking to express an opinion.” The court believed it decisive that the SEIU's automated system required a real person to “exercise independent judgment” in order to connect to Jackson. KDMC now appeals, focusing exclusively on § 227(b)(1)(A) and § 227(b)(1)(D).

II.

We review de novo whether the district court properly dismissed a complaint pursuant to Rule 12(b)(6). See Logsdon v. Hains, 492 F.3d 334, 340 (6th Cir.2007). At this early stage, our job is simply to test the sufficiency of the complaint on the assumption that all of its factual allegations are true. See id. We will allow the litigation to proceed if we are satisfied that the allegations state a plausible claim to relief under applicable state or federal law. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555–56, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). In the appeal before us, that inquiry turns on the reach of certain provisions of the TCPA, which is a matter of statutory interpretation we also review de novo. See Bryant v. Comm'r of Soc. Sec., 578 F.3d 443, 445 (6th Cir.2009).

A.

The TCPA is a federal statute that regulates the use of telephone technology. Congress enacted the TCPA “to protect the privacy interests of residential telephone subscribers by placing restrictions on unsolicited, automated telephone calls to the home and to facilitate interstate commerce by restricting certain uses of ... automatic dialers.” S.Rep. No. 102–178, at 1 (1991), reprinted in 1991 U.S.C.C.A.N. 1968, 1968; see Telephone Consumer Protection Act of 1991, Pub. L. No. 102–243, 105 Stat. 2394 (1991) (current version at 47 U.S.C. § 227 (2010)). The TCPA thus seeks to curb abusive telemarketing practices that threaten the privacy of consumers and businesses.

The TCPA prohibits four practices in particular—subject to a few limited exceptions not relevant here. Two of these prohibitions are at issue. First, the TCPA makes it unlawful “to make any call ... using any automatic telephone dialing system or an artificial or prerecorded voice ... to any emergency telephone line ... [or] to the telephone line of any guest room or patient room of a hospital, health care facility, elderly home, or similar establishment....” 47 U.S.C. § 227(b)(1)(A)(i)–(ii). Second, the TCPA makes it unlawful “to use an automatic telephone dialing system in such a way that two or more telephone lines of a multi-line business are engaged simultaneously.” Id. § 227(b)(1)(D). Private parties are authorized to seek injunctive relief and statutory damages for violations of these prohibitions. See id. § 227(b)(3).

The general question raised on appeal is just how broadly the prohibitions in § 227(b)(1)(A) and § 227(b)(1)(D) ought to be read. KDMC argues that the relevant statutory language ought to be read broadly enough to proscribe the conduct it complains of here. It further argues that a broad reading is consistent with congressional intent and the underlying purposes of the Act. The SEIU, for its part, admits that it conducted a robo-call campaign aimed at pressuring KDMC's management. It also admits that KDMC received hundreds of calls as a result. Nonetheless, the SEIU argues that the TCPA is drawn narrowly enough that it does not regulate calls ultimately made by live persons. We are left to answer two specific questions in light of the facts alleged in the complaint: (1) Did the SEIU “make any call ... to any emergency telephone line” at KDMC during the course of its robo-call campaign within the meaning of § 227(b)(1)(A)? (2) More generally, did the SEIU “use” its automated system to tie up multiple lines at KDMC in a manner prohibited under § 227(b)(1)(D)? We answer both questions in the negative. Seeing no plausible violation of the TCPA, we affirm.

B.

The first question is whether the factual allegations in KDMC's complaint can make out a violation of § 227(b)(1)(A). This provision prohibits using an automatic telephone dialing system or prerecorded voice message “to make any call ... to any emergency telephone line,” including “any emergency line of a hospital” ...