[00:00:55] Speaker 01: All right, our next case this morning, our last case this morning, is Silver versus City of Albuquerque, 23-2058. [00:01:05] Speaker 01: Counsel, you may begin. [00:01:14] Speaker 03: May it please the court, Carter Harrison for the appellant, Gerald Silver. [00:01:18] Speaker 03: The question raised in this case is whether a municipality gets a free pass to violate the TCPA with impunity. [00:01:24] Speaker 03: upon the mere incantation and sometimes the mere implicit invocation and sometimes even merely in the midst of the COVID-19 pandemic. [00:01:38] Speaker 03: Now, first of all, the city raises an even more ambitious argument, which is that the TCPA should not apply to them at all, ever. [00:01:46] Speaker 03: I'd like to address that argument first. [00:01:48] Speaker 03: It was addressed first in the briefs. [00:01:50] Speaker 03: So the city is a person under the TCPA. [00:01:53] Speaker 03: The FCC takes our side on that unambiguously. [00:01:56] Speaker 03: The district court effectively sided with us on that and certainly didn't side with the city on that. [00:02:03] Speaker 03: We contend that the Blackboard 2 decision from the FCC is legislative. [00:02:08] Speaker 03: We say it's legislative because a high degree of notice and comment procedures [00:02:12] Speaker 03: It adjusted the legal rights and obligations, for example, as to federal and state government contractors, to whom it also unambiguously subjected the TCPA's provision. [00:02:24] Speaker 03: And then one thing that we didn't specifically mention in our briefs, but the court can certainly take judicial notice of, is that it was published in the Federal Register at volume 86, number 28, page 9299. [00:02:35] Speaker 03: And that was in February of 2021. [00:02:41] Speaker 03: We will say that in contrast to how the Fourth Circuit has been managing the physician's desk reference case on remand from the Supreme Court, and as a reminder, that's a case that went up to the Supreme Court, didn't really get any kind of holding, but got some concurrences that wanted to say something. [00:03:00] Speaker 03: It hasn't had much action outside of the Fourth Circuit, but it's had quite a lot of action going up and down between the District Court and the Court of Appeals. [00:03:08] Speaker 03: We do not concede [00:03:10] Speaker 03: However, even if the broad net determination was interpretive, we would say the Hobbs Act still applies to prevent judicial review. [00:03:24] Speaker 03: That's consistent with this court's case in Sorenson and then the Ninth Circuit's case in Hamilton. [00:03:31] Speaker 03: We cited those at page 11 of our opening brief. [00:03:34] Speaker 03: Retroactivity I did wanted to briefly address so the city I believe effectively can see or I think explicitly can see its retroactivity if the determination is deemed to be interpretive and they did so on pages 18 and 25 of their answer brief. [00:03:52] Speaker 03: If it's legislative, I believe that under this court's jurisprudence, the steward capital factors would apply. [00:03:59] Speaker 03: These factors all basically get at how new the interpretation really is. [00:04:05] Speaker 03: And it really is not new at all. [00:04:06] Speaker 03: It's the clearest articulation. [00:04:09] Speaker 03: But really, the other two cases that we've been talking about, Blackboard from way back in 2016, obviously involved school districts and utilities. [00:04:16] Speaker 02: And then, of course, [00:04:20] Speaker 02: If that's the case, why does the FCC keep referring to its interpretations of the TCPA? [00:04:28] Speaker 03: So, I mean, we don't think that that's binding. [00:04:32] Speaker 03: Does it mean anything? [00:04:35] Speaker 03: I could see in some circumstances, and certainly if it made a clear statement, this is an interpretive versus legislative action, but the reality of the [00:04:47] Speaker 03: APA Chevron fiction is that in filling in interstitial gaps in the statute, we say that agencies are interpreting as a broad matter. [00:04:58] Speaker 03: At the very least, the COVID-19 ruling would get us back to at least March of 2020. [00:05:04] Speaker 03: The COVID-19 ruling, unambiguously, it was shorter, but obviously, prong one, [00:05:12] Speaker 03: which we all agree is satisfied here, is that for the emergency purposes exception to apply in this context, it has to be a governmental entity or a hospital. [00:05:22] Speaker 03: So obviously the implication there is that this is not a surprise that the city is covered by the TCPA. [00:05:30] Speaker 03: Now, if for some reason the court were to find that it is non-retroactive, we contend that we still plausibly allege calls after the Broad Net 2 decision, and I'll address that. [00:05:41] Speaker 03: when I address the other issue of the range of plausibly alleged calls that we made, namely in the context of whether we alleged calls made after the lifting of the ban on mass gatherings, which goes to the other issue here. [00:06:01] Speaker 03: Once again, we would say, whether it's interpretive or legislative, that full chevron deference applies. [00:06:08] Speaker 03: We have a long note on that. [00:06:12] Speaker 03: That's footnote nine on page 23 of our opening brief. [00:06:15] Speaker 03: Obviously, again, the Fourth Circuit has suggested that interpretive decisions can only get skidmore deference as a backstop. [00:06:23] Speaker 03: If nothing else, clearly, we would at least get skidmore deference to that decision. [00:06:28] Speaker 03: And then, of course, [00:06:30] Speaker 03: If you get to just the meat of the decision, the decision is right. [00:06:34] Speaker 03: We say that it's unambiguously right, but it needs to be unambiguously wrong for the city to get over the deference that the FCC has accorded under ordinary administrative law principles. [00:06:50] Speaker 02: And again, as the- Why should we accord them any deference at all? [00:06:58] Speaker 03: because they're an agency speaking within its realm of expertise, Your Honor, and because it's a well-reasoned decision. [00:07:06] Speaker 03: I don't want to just repeat everything that the FCC said in the Broad Net 2 decision, but for example, as the district court noted, Congress considered a governmental exemption and decided not to adopt it. [00:07:23] Speaker 03: Moving on to the issue that the district court actually did decide the case on, which is, so virtual town halls are not in and of themselves a pandemic mitigation measure, which was effectively the district court's ruling here. [00:07:40] Speaker 03: To fall into the emergency purposes exception, the call must address an imminent time sensitive, and those two terms were used throughout. [00:07:48] Speaker 03: the two SEC orders giving flesh to what the emergency purposes exception means. [00:07:55] Speaker 01: Council, could I just ask you a couple of questions to clarify the scope of your claim. [00:08:03] Speaker 01: In the reply brief, for example, you say that the emergency purposes exception does not cover all of the city's robo-calls promoting virtual town halls. [00:08:16] Speaker 01: implies that it does cover some of them. [00:08:18] Speaker 01: So which ones does it cover and which ones does it not cover? [00:08:25] Speaker 03: Your Honor, I think that the language used, so we obviously contend that the content of the calls will be controlling. [00:08:31] Speaker 03: I don't know that we have, certainly not from discovery, have even the content of the calls. [00:08:38] Speaker 03: We certainly don't have the full content of all of the virtual town halls, which we contend [00:08:44] Speaker 03: are not the focus of the inquiry. [00:08:45] Speaker 01: Well, let's talk about the calls that your client received. [00:08:50] Speaker 01: Are all of those, are you contending that the emergency purposes exception don't apply to any of those? [00:08:58] Speaker 03: I believe that the calls that we're, I mean obviously the calls that we're launching claims on the basis of we're saying are violations of the TCPA. [00:09:09] Speaker 03: All right, all right. [00:09:10] Speaker 01: I just, that sentence, I thought was kind of, seemed like you were saying that some of the calls were okay and some of the calls were not under the TCPA. [00:09:24] Speaker 03: No, and I apologize for the lack there. [00:09:25] Speaker 03: I would say that the city has stronger arguments on some, because some of them do mention that the pandemic. [00:09:31] Speaker 01: So related question. [00:09:33] Speaker 01: Do you contend that the call satisfied the TCPA as to some recipients, for example, those who were at high risk for COVID complications and not to others? [00:09:48] Speaker 03: I would say that some might have consented, some might have asked. [00:09:51] Speaker 01: I'm not talking about consented. [00:09:53] Speaker 01: I'm just saying, are there some individuals, given their circumstances, where the calls satisfied the TCPA? [00:10:01] Speaker 03: In the respect that Your Honor is asking about, which is, I understand it to be risk, susceptibility to severe consequences from contracting COVID-19, I don't think that a virtual town hall [00:10:15] Speaker 03: mitigates that risk as to anyone. [00:10:18] Speaker 03: So I don't think that we would agree in that context. [00:10:22] Speaker 03: Again, I think consent probably is an issue that needs to be explored on an individualized basis, but I don't know that I would agree about individualized susceptibility to severe consequences, things like advanced age or lung conditions, et cetera. [00:10:42] Speaker 01: You also say in your briefing that virtual town halls did not replace in-person town halls. [00:10:50] Speaker 01: That's correct. [00:10:51] Speaker 01: Did Mr. Silver allege that in the complaint? [00:10:54] Speaker 01: Because I was looking for it. [00:10:56] Speaker 01: I'm not sure I saw it in there. [00:10:58] Speaker 03: I can't say for certain whether we specifically said these were the first time the city did town halls. [00:11:04] Speaker 03: We certainly didn't say that the opposite, but I can't tell the court that right now. [00:11:10] Speaker 03: What I will say is that it is in fact true that the city has conceded in its briefing that the town halls were a new thing, that the [00:11:22] Speaker 03: As they were introduced, they were introduced for the first time virtually. [00:11:24] Speaker 03: They were not switched from in-person to virtual, which seems to have been a linchpin of the district court's rationale here. [00:11:36] Speaker 03: And the district courts, I mean, the reasoning itself [00:11:42] Speaker 03: again, I think has to be bootstrapping in the content of the virtual town halls. [00:11:47] Speaker 03: I think most obviously everyone would agree if the city were making calls about to promote a virtual social gathering, virtual video game competition, that that would clearly not be an emergency purpose under the TCPA. [00:12:03] Speaker 03: I think that the [00:12:05] Speaker 03: The virtue of the district court relying on the virtuality aspect, specifically of the promoted event, was that that is a better 12b6 case, whereas it seems more obvious that getting into the content of the town halls themselves would not be something that would be appropriate to do on a 12b6 basis. [00:12:29] Speaker 03: The court has only seen evidence about what we want, really, of the town halls that were done, [00:12:35] Speaker 03: is one that was probably more legitimately COVID-focused than the others. [00:12:41] Speaker 01: I guess I'm not understanding this argument about the content of the town halls. [00:12:47] Speaker 01: If the town hall was a meeting to talk about COVID, that's one thing. [00:12:55] Speaker 01: If it was a town hall to talk about something else that maybe is still really important, [00:13:02] Speaker 01: but it would be a risk for people to be there in person because of COVID. [00:13:08] Speaker 01: What difference does it make what the subject matter of the town hall is? [00:13:12] Speaker 01: It's really a question of keeping people away to keep them safe and then still be able to participate and get the information they may need about COVID or something else. [00:13:23] Speaker 03: I would agree to a point, except again, as Your Honor had already inquired about, the event itself was new for COVID. [00:13:32] Speaker 03: It then became self-justifying under COVID. [00:13:37] Speaker 03: We don't contend that the content is what's controlling here. [00:13:40] Speaker 03: It probably is true that if you had a town hall anywhere about any set of topics, COVID was going to come up during this time frame because it was such a dominant issue. [00:13:50] Speaker 01: Let's say it doesn't come up. [00:13:51] Speaker 01: Let's say there's some other topic about keeping the streets safe or some other health prevention topic. [00:14:02] Speaker 01: It isn't about COVID, but COVID is still there. [00:14:06] Speaker 01: That is the reason they're having the virtual town halls and they're saying, look, you can still get valuable information from the city, but we also want to protect you from COVID. [00:14:18] Speaker 01: So we're inviting you to participate virtually. [00:14:21] Speaker 01: I guess my question really goes to, does the content of the town hall drive this issue or is it something else? [00:14:29] Speaker 03: The content of the town hall does not. [00:14:31] Speaker 03: Now, obviously, what they'll say in the call will be tailored typically to the content of the town hall. [00:14:37] Speaker 03: What we'd say is that an interpretation like the one that your honor is alluding to would effectively open up the emergency purposes exception to everything that the city might want to promote during the pandemic. [00:14:54] Speaker 01: Why? [00:14:55] Speaker 01: If the content of the town hall doesn't matter, [00:14:59] Speaker 01: I don't understand that argument. [00:15:02] Speaker 03: Well, it doesn't matter in the sense that if the call doesn't refer to COVID, if the call itself, the content of the call itself, doesn't have that's the focus of the analysis. [00:15:11] Speaker 01: I'm talking about the content of the meeting, not the content of the call. [00:15:13] Speaker 01: We can talk about that, but I'm just asking about the content of the meeting. [00:15:20] Speaker 03: So again, our contention is that the call is the focus of the inquiry. [00:15:27] Speaker 03: Obviously, if the call lies and says we're having a town hall about COVID and then you look at the town hall and that clearly was untrue, that might be relevant. [00:15:38] Speaker 03: But we contend that it doesn't go the other way. [00:15:40] Speaker 03: I think I understand your point. [00:15:43] Speaker 03: And the only other thing before my time expires to mention is that, of course, the district court's ruling has no force at all for those calls that occurred. [00:15:51] Speaker 03: And we established they did occur. [00:15:53] Speaker 03: We believe we plausibly pled them. [00:15:54] Speaker 03: We pled a pattern of practice. [00:15:56] Speaker 03: We talked and used words like, at a minimum, at least this number of calls, to those calls that occurred after the mass gathering ban slipped. [00:16:04] Speaker 03: Thank you, Your Honors. [00:16:13] Speaker 00: Your Honors, may it please the Court, I'm Sarion Mullins, here today representing the City of Albuquerque. [00:16:24] Speaker 00: I think I will begin with where the last comments ended if the Court is okay proceeding in that fashion. [00:16:32] Speaker 00: Could you speak up, please? [00:16:34] Speaker 00: I'm sorry, Judge Kelly. [00:16:37] Speaker 00: Let me begin with where the argument just ended is what I'd like to do. [00:16:43] Speaker 00: And that was a discussion of the town hall meetings. [00:16:48] Speaker 00: And Your Honor correctly observes we believe that the content of the meetings themselves is immaterial. [00:16:59] Speaker 00: What matters is the phone calls. [00:17:02] Speaker 00: And the phone calls announced the meetings to be a virtually held event in the midst [00:17:12] Speaker 00: of a declared public health emergency, calls coming from the government official, in this case, the mayor, that were solely informational and had no commercial or advertising element, but were solely to disseminate information to the public and were announcing a socially distanced means of doing so, that was enough. [00:17:42] Speaker 00: In the beginning of the outbreak in March of 2020... Council, can I interrupt for one second? [00:17:49] Speaker 01: Clock isn't counting down, but are you... Okay, we'll figure it out. [00:17:59] Speaker 00: I'm sorry, I didn't notice. [00:18:01] Speaker 01: Go ahead. [00:18:02] Speaker 00: I didn't notice. [00:18:03] Speaker 00: At the beginning of the outbreak of COVID in March of 2020, the public health emergencies were declared. [00:18:12] Speaker 00: And on its own motion, the FCC entered a declaratory ruling. [00:18:18] Speaker 00: And it did so because there was a concern that the Telephone Consumer Protection Act, the TCPA, not be used to interfere with government communications that were intended to help keep the public safe during this novel and unprecedented time that was an emergency. [00:18:40] Speaker 00: There's three points that we can draw from that ruling that are most salient here. [00:18:48] Speaker 00: The first is that COVID unquestionably constituted an imminent health risk. [00:18:55] Speaker 00: There's no question that was decided. [00:18:58] Speaker 00: And so the idea of whether there's an imminent health risk or whether there's a public emergency, that's not at hand in this case. [00:19:06] Speaker 00: Those were declared and nobody's disputing that. [00:19:10] Speaker 00: The second lesson we can draw from that Sue Espante declaratory ruling is that effective government communications were required to help slow the spread of the disease. [00:19:22] Speaker 00: That is, and the FCC came forward and said, it's a critical component of the nation's effort to address and contain this emergency that they be allowed, government officials be allowed to communicate. [00:19:36] Speaker 00: And the third lesson to be drawn [00:19:38] Speaker 00: is that if government officials are making calls that are informing about COVID or mitigation measures to help protect us from COVID, they are lawfully made phone calls. [00:19:53] Speaker 00: So the FCC offered that guidance and it also offered a test, which you've seen in the papers and the briefs. [00:20:01] Speaker 00: If the calls come from a health provider or a government official, [00:20:05] Speaker 00: If the calls are informational, and if the calls are necessitated and related to the pandemic, then they qualify under the emergency purpose exception. [00:20:18] Speaker 01: Can I just ask you, we're on a 12b6 motion to dismiss. [00:20:25] Speaker 01: Why, and referring to the content of the calls, why didn't the lack of reference to the pandemic [00:20:35] Speaker 01: in the phone calls, or at least a number of the phone calls, allow reasonable inference that they were not related to an immediate health or safety risk? [00:20:49] Speaker 00: Yes. [00:20:49] Speaker 00: First, in response, Your Honor, the calls might not have mentioned COVID by name, but they did expressly mention a mitigation measure, which is the other part of allowing them to be lawfully made under that FCC ruling. [00:21:05] Speaker 00: All of the calls, the ones that did mention COVID, the ones that didn't mention COVID, everything in the complaint and everything alleged expressly mentioned the virtual town hall meetings, which were a mitigation measure. [00:21:20] Speaker 00: When the timing of those calls is made in the midst of the pandemic, it's the first thing on our minds in 2020. [00:21:27] Speaker 00: You know, it's every newspaper article. [00:21:30] Speaker 00: It's every conversation. [00:21:33] Speaker 00: our lives, our schools, our work, the mayor is calling in the midst of that timing and inviting the public to a virtual town hall meeting that hasn't been held before. [00:21:47] Speaker 00: And let me just hit on that point because we discussed a moment ago, we heard Mr. Harrison discuss that these virtual town hall meetings didn't replace other town hall meetings like [00:22:00] Speaker 00: our kids started suddenly going to school remotely. [00:22:02] Speaker 00: It wasn't that situation. [00:22:03] Speaker 00: It was brand new. [00:22:05] Speaker 00: I think that actually shows that they were necessitated by the pandemic. [00:22:10] Speaker 01: Let me just ask, because we're limited to the four corners of the complaint. [00:22:19] Speaker 01: Is that in the complaint that this was new? [00:22:23] Speaker 00: Well, it certainly is more fleshed out in his briefing. [00:22:27] Speaker 00: But yes, in the complaint, [00:22:29] Speaker 00: The allegation is that the first town hall occurred in March of 2020. [00:22:33] Speaker 00: So I think that's at paragraph 30. [00:22:36] Speaker 00: I apologize if my memory's off on that. [00:22:38] Speaker 00: I think it's there. [00:22:40] Speaker 00: So from the four corners of the complaint, these virtual town hall meetings were precipitated by the outbreak and occurred firstly in March of 2020. [00:22:51] Speaker 01: Well, coming back to the four corners [00:22:55] Speaker 01: that you were talking earlier about how the reference to the virtual town halls, everybody knows that it has to do with the pandemic. [00:23:04] Speaker 01: But again, we're just dealing with the complaint. [00:23:10] Speaker 01: The complaint says, wait a minute, these calls didn't refer to the pandemic. [00:23:18] Speaker 01: Why should a court be able to read that into the calls if it's not in the complaint? [00:23:25] Speaker 00: Well, for two reasons. [00:23:26] Speaker 00: The first, again, is that even if the calls didn't mention COVID, they mentioned a mitigation measure. [00:23:32] Speaker 00: And so that's right within the phone calls. [00:23:35] Speaker 00: And secondly, the only way to read the complaint as unrelated to COVID is to make a very unreasonable inference. [00:23:45] Speaker 00: A call coming from the mayor in March of 2020 announcing a virtual town hall meeting, the plausible inference is it related to COVID, the virtual town hall meeting being a mitigation measure instituted in response to COVID. [00:24:02] Speaker 00: And to invite the opposite conclusion, which is that a call from the mayor in the midst of a pandemic asking your virtual attendance at a public meeting was unrelated to COVID is implausible. [00:24:15] Speaker 00: And we are being judged by a plausibility standard, not a possibility and not a speculative. [00:24:21] Speaker 00: But what is a reasonable inference based on the court's exercise of common sense and judicial experience? [00:24:29] Speaker 00: From Nick Balkans. [00:24:30] Speaker 01: Did the district court find the need to take judicial notice of the pandemic? [00:24:38] Speaker 00: The district court, Your Honor, took judicial notice of one fact, which was that the pandemic was [00:24:45] Speaker 00: in existence throughout the material period of the complaint, yes. [00:24:54] Speaker 00: So I think when the timing of the complaint is, I mean, so the timing of the calls alleged in this case is material, and their subject matter is material, and the subject matter as alleged in the four corners of the complaint announce a mitigation measure. [00:25:10] Speaker 00: And for those reasons, the complaint within its four corners [00:25:15] Speaker 00: is not sufficient to state a plausible claim for relief. [00:25:28] Speaker 00: I'm sorry, I'm going to flip forward to another call, sorry, another question the court had about if the calls were well received by some of the community but not other of the community, is there [00:25:44] Speaker 00: a decision to be made about almost a relevancy question, Your Honor, which was addressed in the briefing and touched on this morning. [00:25:52] Speaker 00: And I would say that if the calls are made to the potentially affected community, then the nexus is appropriately there. [00:26:02] Speaker 00: And as alleged in this case, they were made to the area code of the community the mayor is officiating over and asking to attend public meetings concerning. [00:26:15] Speaker 02: Council, does the, nobody knows where to look. [00:26:21] Speaker 02: Sorry. [00:26:21] Speaker 02: Does the city concede that they are covered by this act? [00:26:33] Speaker 00: No, the city does not concede that, Judge Kelly. [00:26:39] Speaker 00: And if this is a good time, I will turn to that argument. [00:26:44] Speaker 00: The district court correctly dismissed the complaint because the emergency purpose exception applies to the calls in this case, but there is an independent reason to dismiss the case and it would be appropriate to affirm on that basis as well, which is that the statute applies to persons. [00:27:06] Speaker 00: And it is our position and the city has argued [00:27:12] Speaker 00: that a person does not include governments. [00:27:16] Speaker 00: Local governments here are in particular questioned. [00:27:21] Speaker 00: The language of the act itself. [00:27:22] Speaker 00: Isn't a corporation a person? [00:27:25] Speaker 00: Yes, Your Honor, it is. [00:27:27] Speaker 01: Isn't Albuquerque a municipal corporation? [00:27:31] Speaker 00: Correct, Your Honor. [00:27:32] Speaker 00: The Federal Communications Act, which the TCPA amended in 1991, does include a definition of person. [00:27:40] Speaker 00: And the definition extends to partnerships, corporations, associations, other business entities. [00:27:49] Speaker 01: It also, Section 153 said it includes any corporation. [00:27:57] Speaker 00: Correct, Your Honor, it does. [00:27:58] Speaker 00: And there's one case that's considered this very question. [00:28:02] Speaker 00: It is the Clark versus Buffalo School District. [00:28:05] Speaker 00: And in that case, I believe from the Western District of New York, the court [00:28:10] Speaker 00: looked at that question and said, when we examine the additional examples of who is a person under the Communications Act, the entities listed are all nongovernmental entities. [00:28:27] Speaker 00: And so we're going to group those words under the statutory construction device, nosotera associis. [00:28:34] Speaker 00: Those words are going to be given their common meaning. [00:28:36] Speaker 01: How about the plain meaning rule? [00:28:39] Speaker 00: Well, under the plain meaning rule of person, Your Honor. [00:28:42] Speaker 01: The plain meaning rule of any corporation. [00:28:45] Speaker 00: We would disagree that the plain meaning of person extends to governmental entities. [00:28:52] Speaker 01: I understand that, but the statute says person includes corporation, includes any corporation. [00:29:00] Speaker 00: And? [00:29:00] Speaker 01: And Albuquerque is a municipal corporation. [00:29:03] Speaker 01: Is it? [00:29:04] Speaker 01: I don't know. [00:29:04] Speaker 01: I assume it is. [00:29:05] Speaker 00: Your Honor, yes, you are correct. [00:29:07] Speaker 00: It is. [00:29:07] Speaker 00: But our ordinary understanding, as well as the cases that we've referenced in our briefs that have looked at that precise question, have found the ordinary meaning of corporation is not understood by everyday people to include municipalities or governments. [00:29:24] Speaker 01: Well, that may be, but that word any, that's a pretty powerful word, isn't it? [00:29:29] Speaker 00: I think any when it's used in a group of non-governmental entities. [00:29:33] Speaker 00: So it's going to cover any manner of private or non-governmental entity. [00:29:38] Speaker 00: I would submit they're all swept into the statute. [00:29:42] Speaker 00: But governments are unique. [00:29:43] Speaker 00: And municipal governments or corporations are very unique from the list of other private business entities included in that definition. [00:29:53] Speaker 01: They're not unique in the sense that they can make robo calls just as much as others can. [00:30:00] Speaker 00: They can do business, and they have similarities, but they have very distinct differences. [00:30:05] Speaker 00: And again, in the common understanding and in the case law that we've cited in our briefs, the understanding of corporations has not extended to governmental or municipal corporations. [00:30:20] Speaker 00: So I do think, though, that the really important point on this question Judge Kelly raises about personhood is the statutory text. [00:30:29] Speaker 00: I do think that you start with the text in Congress said, person. [00:30:33] Speaker 00: And Congress knows how to include governments and municipalities when it chooses to do so. [00:30:40] Speaker 00: And there's a number of acts that the court can look at where municipalities have been affirmatively and expressly included. [00:30:48] Speaker 00: And the submitting submits that when they're not included, when there's a conspicuous absence in that statute, [00:30:55] Speaker 00: that the presumption should not be to include governments. [00:30:59] Speaker 01: Was it the mayor who was on the phone? [00:31:02] Speaker 00: Yes, it was. [00:31:02] Speaker 01: Why isn't the mayor a person? [00:31:06] Speaker 00: The mayor might be a person, Your Honor. [00:31:08] Speaker 01: I think the mayor probably is a person. [00:31:10] Speaker 00: But in the context of this lawsuit where they sued the city, I understand. [00:31:15] Speaker 00: We're here arguing that the city is not a person. [00:31:19] Speaker 00: I do want to point out for the court, though, something on this before I leave and I'm close to my time. [00:31:24] Speaker 00: In preparing for today's argument, I did notice that a regulation promulgated under the TCPA says that something slightly different than the language of the statute, which just says no person. [00:31:39] Speaker 00: The regulation says no person or entity. [00:31:43] Speaker 00: And Your Honor, I'm out of time. [00:31:46] Speaker 00: May I finish this one point to the court? [00:31:50] Speaker 01: Sure. [00:31:50] Speaker 01: If you want to give us the site. [00:31:52] Speaker 00: Yes, it is 47 CFR 64.1200 subparagraph A 1. [00:32:04] Speaker 00: And Your Honor, I'm bringing this to the Court's attention. [00:32:06] Speaker 00: It wasn't raised by the appellant, and the FCC didn't even rely on its own regulation in deciding in its interpretive decision that local governments are persons. [00:32:20] Speaker 01: And I would submit... Council, if it hasn't been raised, but you think it would be helpful to the court, maybe a 28-J letter would be the most effective. [00:32:28] Speaker 01: And then, Council, you can respond to that, of course. [00:32:31] Speaker 00: Yes. [00:32:32] Speaker 01: Why don't we do that? [00:32:32] Speaker 00: That is fair, Your Honor. [00:32:34] Speaker 00: And so without any time left, I would just respectfully request that the court firm the district court and dismiss plaintiff's case. [00:32:49] Speaker 01: Mr. Harrison had rebuttal time? [00:32:53] Speaker 01: I think she went over about a minute. [00:32:56] Speaker 01: If you'd like one minute, you can have it. [00:33:04] Speaker 03: Your Honor, the long and short of it is that the virtual town halls did nothing to mitigate COVID beyond limiting their own deleterious impact in terms of the fact that they would constitute a risk were they held in person. [00:33:21] Speaker 03: This is a case where we do need to have discovery it's inappropriate on 12b6. [00:33:25] Speaker 03: For example, we were able to allege these numbers were harvested from 311, that the city bypassed certain other available processes like its ability to send a text message or call out to all cell phones physically located within the city. [00:33:44] Speaker 03: And then, for example, we couldn't allege it, but we know from public records requests that voter rolls were used in part in the compilation of the list of numbers to be called. [00:33:57] Speaker 03: Thus getting to, I guess, if the court hasn't gotten a sense of it, what we think might have been the actual purpose of these calls, which is effectively a pre-election political rallying purpose. [00:34:10] Speaker 01: Thank you, Robert. [00:34:11] Speaker 01: Thank you, counsel. [00:34:12] Speaker 01: Thank you to both counsel this morning. [00:34:14] Speaker 01: We appreciate these arguments. [00:34:17] Speaker 01: The case will be submitted. [00:34:18] Speaker 01: Counsel are excused.