                         RECOMMENDED FOR FULL-TEXT PUBLICATION
                             Pursuant to Sixth Circuit I.O.P. 32.1(b)
                                       File Name: 13a0047p.06

                  UNITED STATES COURT OF APPEALS
                                   FOR THE SIXTH CIRCUIT
                                     _________________


                                                 X
                                                  -
 ASHLAND HOSPITAL CORPORATION, d/b/a

                          Plaintiff-Appellant, --
 King’s Daughters Medical Center,

                                                  -
                                                     No. 11-6006

                                                  ,
                                                   >
                                                  -
           v.

 SERVICE EMPLOYEES INTERNATIONAL UNION, -
                                                  -
                                                  -
 DISTRICT 1199 WV/KY/OH,
                         Defendant-Appellee. N
                   Appeal from the United States District Court
                 for the Eastern District of Kentucky at Ashland.
               No. 0:10-cv-131—David L. Bunning, District Judge.
                                    Argued: October 3, 2012
                           Decided and Filed: February 21, 2013
             Before: MOORE and COLE, Circuit Judges; ROSE, District Judge.*

                                       _________________

                                            COUNSEL
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.
      COLE, J., delivered the opinion of the court, in which MOORE, J., joined.
ROSE, D. J. (pp. 13–16), delivered a separate dissenting opinion.




         *
           The Honorable Thomas M. Rose, United States District Judge for the Southern District of Ohio,
sitting by designation.


                                                   1
No. 11-6006        Ashland Hosp. v. SEIU                                           Page 2


                                 _________________

                                       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
No. 11-6006        Ashland Hosp. v. SEIU                                           Page 3


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 extension at 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
No. 11-6006         Ashland Hosp. v. SEIU                                             Page 4


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 Rule12(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
(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
No. 11-6006         Ashland Hosp. v. SEIU                                             Page 5


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.
No. 11-6006        Ashland Hosp. v. SEIU                                          Page 6


                                           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” or “health care
facility.” 47 U.S.C. § 227(b)(1)(A)(i). KDMC contends that the SEIU made prohibited
calls by connecting certain residents who received the prerecorded message to Jackson’s
extension at the hospital, the aggregate effect of which was to interfere with its
emergency lines. The district court rejected this view.

       Our answer turns on what is meant by the expression “make any call” under
§ 227(b)(1)(A). When presented with a matter of statutory interpretation, we begin with
the language of the Act itself. See United States v. Blanchard, 618 F.3d 562, 567
(6th Cir. 2010); United States v. Health Possibilities, P.S.C., 207 F.3d 335, 338-39
(6th Cir. 2000); see also United States v. Ron Pair Enters., 489 U.S. 235, 241 (1989).
If the meaning of the Act’s language is plain, we give it effect and our analysis comes
to an end. See Ron Pair, 489 U.S. at 240-41. Such is the case here. While the TCPA
does not define “call,” that operative term quite naturally suggests some kind of direct
communication between two parties—the caller and the caller’s intended recipient. A
person is said to “call” whoever is on the other end of the line. But KDMC does not
make factual allegations that the SEIU used its robo-call campaign to communicate
directly with Jackson or anyone else at the hospital. Indeed, if Jackson had answered his
telephone at any particular time over the relevant two-day period, he would have heard
a live voice on the other end, not a prerecorded message from the SEIU. Under this
common sense approach, the calls actually made to Jackson came from those residents
who heard the SEIU’s message and elected to press “1” to share their concerns. It would
do violence to the ordinary meaning of “mak[ing] any call” to hold otherwise.

       We are not the only ones to read the TCPA this way. In Satterfield v. Simon &
Schuster, Inc., the Ninth Circuit considered “what . . . Congress intend[ed] when it said
‘to make any call’” under § 227(b)(1)(A). 569 F.3d 946, 953-54 (9th Cir. 2009)
No. 11-6006        Ashland Hosp. v. SEIU                                            Page 7


(addressing the proper classification of text messaging under § 227(b)(1)(A)(iii)). It held
that “Congress intended to regulate the use of an [automated system] to communicate
or try to get into communication with a person by a telephone.” Id. at 954. This
construction is consistent with the purposes of the Act. See id. (noting that Congress
was primarily interested in regulating automated calls that invade consumer privacy).
Here, the SEIU never actually communicated with KDMC by telephone, nor did it try
to do so, as KDMC itself concedes. The complaint ultimately reveals two separate calls
in any given interaction: one between the SEIU’s automated system and an area resident
(to which the TCPA applies), and another between the resident and Jackson (to which
the TCPA does not apply).

       KDMC sees things differently. In its reply brief, KDMC cites an alternative
dictionary definition of the verb “make” that is the equivalent of “cause.” KDMC goes
on to argue that it is enough that the SEIU’s robo-call campaign in some sense caused
the disruptive deluge of live calls to Jackson to be made. This construction stretches
credulity for obvious reasons. More significantly, it would give rise to far-reaching and
unforeseen liability under the narrow prohibition in § 227(b)(1)(A). We therefore
decline to adopt it. Instead, we conclude that a reasonable person would understand the
expression “make any call” to require some form of direct telephone communication
between two parties. Because KDMC has not alleged that it was the recipient of any
such communication from the SEIU, it cannot state a claim under § 227(b)(1)(A).

                                            C.

       The next question is whether the factual allegations in KDMC’s complaint can
make out a violation of § 227(b)(1)(D). This provision prohibits “us[ing] an automatic
telephone dialing system in such a way that two or more telephone lines of a multi-line
business are engaged simultaneously.” 47 U.S.C. § 227(b)(1)(D). KDMC contends that
it is a comparatively broader prohibition because it eschews any sort of “direct contact
requirement.” Accordingly, KDMC further contends that it is sufficient to allege that
the SEIU was the wellspring of all 536 calls that flooded the hospital’s lines—even if
the torrent was “funneled” through third-party callers. The district court disagreed.
No. 11-6006         Ashland Hosp. v. SEIU                                            Page 8


Because this question is more difficult than the last, we must take an especially close
look at the factual allegations and the applicable statutory language.

        Our answer turns on what it means to “use an automatic telephone dialing
system” under § 227(b)(1)(D). This statutory prohibition is no doubt framed in general
language. So general, it appears, that we cannot say its meaning is plain. We must
therefore rely on other principles of textual interpretation to guide our analysis. One
such principle is this: When we are tasked with “interpreting a statute featuring as
elastic a word as ‘use,’” we should construe the ambiguous “language in its context and
in light of the terms surrounding it.” Leocal v. Ashcroft, 543 U.S. 1, 9 (2004)
(interpreting portions of the Comprehensive Crime Control Act of 1984). See generally
Robinson v. Shell Oil Co., 519 U.S. 337, 341 (1997) (looking to “the language itself, the
specific context in which the language is used, and the broader context of the statute as
a whole”). Applying the principle here suggests that context narrows the meaning of the
statutory phrase at issue.

        We begin with the other three prohibitions enumerated in § 227(b)(1). Each of
these regulates first-order contact between automated calls and the unwilling recipients
of such calls: § 227(b)(1)(A) regulates “mak[ing] any call” to emergency lines or cell
phones; § 227(b)(1)(B) regulates “initiat[ing] any telephone call” to residential lines; and
§ 227(b)(1)(C) regulates “send[ing] . . . an unsolicited advertisement” to fax machines.
Viewed as a whole, these prohibitions indicate that the appropriate touchstone under
§ 227(b)(1) is the actual receipt of an unwanted automated telephone communication.
We must construe the scope of the prohibition in § 227(b)(1)(D) in similar fashion. But
the simple fact is KDMC received an overwhelming number of live calls from residents
rather than automated calls from the SEIU playing a prerecorded message. While the
calls made to residents were the product of a wholly automated process, the subsequent
calls made to Jackson were not. Thus, KDMC fails to allege facts showing it was the
unwilling recipient of the sort of automated calls regulated under § 227(b)(1)(D) and the
TCPA generally.
No. 11-6006         Ashland Hosp. v. SEIU                                         Page 9


         Our construction has the additional virtue of conforming to Congress’s intent in
passing the TCPA. In cases such as this, where the relevant statutory text is ambiguous,
we may look to legislative history for further guidance. See United States v. Blanchard,
618 F.3d 562, 567 (6th Cir. 2010); Chrysler Corp. v. Comm’r of Internal Revenue,
436 F.3d 644, 654 (6th Cir. 2006). Here, it is quite clear that Congress sought only to
protect individuals and businesses from the invasions of privacy occasioned by
automated and prerecorded calls. See 137 Cong. Rec. H11307-01 (daily ed. Nov. 26,
1991) (statement of Rep. Cooper) (“I regard and I hope the FCC will regard, robotic calls
by machines such as auto dialers and computer-generated voices to be a much greater
threat to the privacy of our homes than calls by live operators.”); see also 137 Cong.
Rec. S18781-02 (daily ed. Nov. 27, 1991) (statement of Sen. Hollings) (“The bill
includes provisions to restrict telephone calls that use an automated or computerized
voice. These calls are a nuisance and an invasion of our privacy.”). Congress drew an
explicit distinction between “automated telephone calls that deliver an artificial or
prerecorded voice message” on the one hand and “calls placed by ‘live’ persons” on the
other. S. Rep. No. 102-178, at 4-5 (1991), reprinted in 1991 U.S.C.C.A.N. 1968, 1972.
That distinction makes all the difference in this case. Whereas Congress intended to
regulate automated calls playing prerecorded messages, KDMC did not receive any such
calls.

         Yet what are we to make of KDMC’s allegation that its call logs showed a single
origin number? Unfortunately for KDMC, it does not alter the most material fact: each
time the telephone rang in Jackson’s office, it was the result of two separate
communications. The first was between the SEIU’s automated system and a resident;
the second was between the resident and Jackson. These residents were not mere
conduits through which the SEIU’s automated system contacted KDMC. After all,
KDMC notes that it received only 536 calls—even though hundreds more residents
heard the SEIU’s prerecorded message. The upshot is that residents initiated separate
calls to KDMC when they made a conscious decision to manually press “1” on their
telephones. If they decided not to press “1,” the calls ended and Jackson’s telephone
never rang. Because live calls from residents rather than automated calls from the SEIU
No. 11-6006         Ashland Hosp. v. SEIU                                           Page 10


ultimately engaged hospital lines, the TCPA does not apply and KDMC cannot state a
plausible claim that the SEIU “used” its automated system in violation of
§ 227(b)(1)(D).

        To review, bearing in mind that words in a statute take their shape from those
around them, we construe the language in § 227(b)(1)(D) to regulate first-order contact
between automated or prerecorded calls and multi-line businesses. However, KDMC
fails to allege that it received anything other than live calls from real persons. Therefore,
KDMC cannot state a claim under the provision in question. A broader reading of the
TCPA would fail to respect ordinary principles of statutory construction, would stretch
the scope of prohibited conduct beyond reason, and would run contrary to Congress’s
stated intent in enacting the TCPA.

        Put simply, the TCPA is not the appropriate vehicle to regulate the give-and-take
of labor disputes such as this. Although there might well be a statute protecting entities
like KDMC from the conduct alleged herein, the TCPA is not it.

                                            III.

        In its complaint, KDMC also sought relief on the theory that the automated calls
to area residents—i.e., the underlying campaign—violated certain provisions of the
TCPA. KDMC alleged that the SEIU made prerecorded calls to residential telephone
lines without prior express consent, 47 U.S.C. § 227(b)(1)(B), and that it failed properly
to identify itself on those calls, id. § 227(d)(3). The district court did not squarely
address either claim in ruling on the SEIU’s motion to dismiss. And KDMC does not
appear to press them on appeal. For this reason, we are likely not in a position to reverse
the district court’s dismissal on these grounds. See Turner v. City of Taylor, 412 F.3d
629, 639 (6th Cir. 2005) (holding that issues raised in the district court but not on appeal
are considered abandoned and not reviewable by the appellate court).

        Even if we were in such a position, the claims are without merit. Under
§ 227(b)(1)(B), a person or entity may not “initiate any telephone call to any residential
telephone line using an artificial or prerecorded voice to deliver a message without the
No. 11-6006           Ashland Hosp. v. SEIU                                                 Page 11


prior express consent of the called party, unless the call . . . is exempted by rule or order
of the [Federal Communications] Commission . . . .” This subsection protects consumers
from receiving unsolicited telemarketing calls in their homes. While the robo-call
campaign would otherwise constitute an obvious violation of § 227(b)(1)(B), the FCC
has exempted calls “made by or on behalf of a tax-exempt nonprofit organization” and
calls “not made for a commercial purpose” from the general ban on artificial or
prerecorded messages. 47 C.F.R. § 64.1200(a)(3) (2012). The SEIU’s status as a tax-
exempt labor organization under § 501(c)(5) of the Internal Revenue Code is not in
doubt. Nor is it in doubt that the SEIU made its calls for a non-commercial purpose.

        Where the TCPA permits certain automated calls, it still prescribes mandatory
“technical and procedural standards.” See 47 U.S.C § 227(d)(1). Among these standards
is a disclosure requirement that “all artificial or prerecorded telephone messages
shall . . . state clearly the identity of the . . . entity initiating the call, and shall . . . state
clearly the telephone number or address of such . . . entity . . . .” Id. § 227(d)(3)(A). The
relevant portion of the statute lacks an “unless” clause; the plain language of § 227(d)
applies the mandatory standards to any call made “using any automatic telephone dialing
system.” See Maryland v. Universal Elections, 787 F. Supp. 2d 408, 413 (D. Md. 2011).
On the facts alleged, it is clear that the SEIU failed to include the necessary identifying
information in its prerecorded message. However, there is little KDMC can do about it.
The private right of action under which KDMC brought this suit, 47 U.S.C. § 227(b)(3),
is expressly limited to enforcing the four § 227(b)(1) prohibitions. Section 227(d) does
not contain a similar private right of action, unlike other subsections. Cf. id. § 227(b)(3)
(enforcing the prohibitions on the use of automated telephone equipment); id.
§ 227(c)(5) (enforcing protections for subscriber privacy rights). While § 227(g)(1) does
authorize actions to enforce sections of the TCPA that include § 227(d), it does so only
for state attorneys general or other public officials. See id. § 227(g)(1) (entitled
“Authority of States”). Thus, KDMC lacks the authority to sue for any § 227(d)(3)(A)
violation even assuming it could demonstrate standing.
No. 11-6006      Ashland Hosp. v. SEIU                                   Page 12


                                         IV.

       For the foregoing reasons, we affirm the district court’s dismissal of the
complaint.
No. 11-6006         Ashland Hosp. v. SEIU                                        Page 13


                                   ________________

                                       DISSENT
                                   ________________

         ROSE, District Judge, dissenting. I respectfully dissent. The majority concludes
that KDMC’s complaint is insufficient because KDMC has not pled plausible violations
of § 227(b)(1)(A), § 227(b)(1)(B) or § 227(b)(1)(D). I conclude that KDMC plausibly
pled violations of § 227(b)(1)(A) and § 227(b)(1)(D).

                                  Section 227(b)(1)(A)

         The majority correctly observes that KDMC sought relief on the theory that the
automated calls to area residents violated certain provisions of the TCPA. As the
majority sets forth, 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….” KDMC’s
complaint alleges that the SEIU made prohibited calls by connecting certain local
residents to KDMC CEO Fred Jackson’s (“Jackson’s”) extension at the hospital.
Therefore, whether KDMC’s complaint is plausible turns on the meaning of “make any
call.”

         The TCPA does not define “call.” However, the majority concludes that this
term “quite naturally” suggests some kind of direct communication between two parties.
Yet, in today’s world, and especially in light of the reasons for enactment of the TCPA,
a call is not necessarily between two individuals. One of the parties may be an
individual and the other party may be a computer or similar device. In this case, KDMC
has pled that the calls received by Jackson came from the SEIU’s automated system.

         The majority emphasizes the fact that, if Jackson had answered his phone, he
would have heard a real voice on the other end. However, this section of the TCPA says
nothing about hearing a real voice.
No. 11-6006        Ashland Hosp. v. SEIU                                          Page 14


       The majority then turns to the Ninth Circuit to support its determination of what
“make any call” means. In Satterfield, the case cited by the majority, the Ninth Circuit
determined that sending a “text” satisfied the TCPA prohibition on “making a call.”
However, the Satterfield court was addressing the type of message and not whether the
message was communication between two parties or between a computer and an
individual.

       The majority next finds that KDMC’s argument that the SEIU’s robo-calling
campaign caused the disruptive deluge of live calls to be made to Jackson “stretches
credulity for obvious reasons.” However, I would disagree.

       I conclude that the expression “make any call” would include direct telephone
communications between an automated dialing system and an individual. Further, I
conclude that KDMC has plausibly pled that the SEIU made calls to KDMC using an
automated dialing system. Even though a local citizen may have participated in the call
to KDMC by pressing “one,” KDMC pleads that the call to it originated with and was
connected from SEIU’s automated dialing system.

                                  Section 227(b)(1)(B)

       Section 227(b)(1)(B) prohibits making prerecorded calls to residential telephone
lines without prior express consent, and section 227(d)(3) requires callers making
prerecorded calls to residential telephone lines to identify themselves. The majority
observes that the district court did not squarely address either claim, that KDMC does
not “appear” to press these claims on appeal and the majority is not “likely” in a position
to reverse the district court’s dismissal on “these” grounds.

       The majority finds that KDMC has no private cause of action to enforce section
227(d)(3). With this I agree. State attorney generals or other public officials must
enforce this section of the TCPA.

       As for the section 227(b)(1)(B) claim, the majority determines that, if it were in
a position to adjudicate this claim, it is without merit. I do not agree that the record
indicates that this claim is without merit.
No. 11-6006        Ashland Hosp. v. SEIU                                         Page 15


        The majority concludes that, while the SEIU’s robo-calling campaign would
otherwise be an obvious violation of section 227(b)(1)(B), the SEIU is exempted. The
TCPA gives the FCC authority to exempt calls not made for a commercial purpose and
calls made for commercial purposes that (1) will not adversely affect the privacy rights
that the TCPA is intended to protect and (2) do not include the transmission of any
unsolicited advertisements. 47 U.S.C. § 227(b)(2)(B). Thus, before determining that the
SEIU is exempted, a court must first determine if the call was made for a commercial
purpose. If the call was not made for a commercial purpose, the FCC exemption could
be considered. If the call was made for a commercial purpose, the FCC exemption
would not apply. Before concluding that this claim is without merit based upon an
exemption for the SEIU, I would remand the matter for a determination of whether the
calls were for a commercial purpose and whether the SEIU is entitled to an exemption
in this case.

                                 Section 227(b)(1)(D)

        Section 227(b)(1)(D) prohibits “us[ing] an automatic telephone dialing system
in such a way that two or more telephone lines of a multi-line business are engaged in
simultaneously.” Whether KDMC has plausibly pled such a cause of action turns on
what it means to “use an automatic dialing system.”

        Clearly, KDMC has plausibly pled that two or more of its telephone lines were
engaged simultaneously by calls that it received as a result of the calls placed by the
SEIU to area residents. While the calls to KDMC were not prerecorded messages,
KDMC has plausibly pled that they were all received from one SEIU telephone number
and were received as a result of the SEIU’s robo-calling campaign.

        Thus, I think that KDMC has plausibly pled that the SEIU has used an automatic
telephone dialing system in such a way that two or more of KDMC’s telephone lines
were simultaneously engaged. The fact that a “live” person participated in the calls from
the SEIU automated system to KDMC is not relevant. Presumably, a live person
somewhere, somehow initiates all robo-calls.
No. 11-6006       Ashland Hosp. v. SEIU                                       Page 16


                                     Conclusion

       I believe that KDMC has plausibly pled that the SEIU has violated sections
227(b)(1)(A) and 227(b)(1)(D) of the TCPA. I also believe that the district court must
address whether the SEIU’s robo-calls were for a commercial purpose, and if not,
whether the SEIU is entitled to an exemption. Therefore, I would reverse the district
court’s dismissal of KDMC’s complaint and remand this matter for continued
adjudication of KDMC’s complaint.
