TCPA Claims ‘Impermissibly Frivolous,’ Says Southern Power’s Motion to Dismiss

Southern Power wants the U.S. District Court for Middle Alabama in Montgomery to dismiss Lee Cunningham’s Telephone Consumer Protection Act complaint as “impermissibly frivolous,” said its motion Thursday (docket 2:22-cv-00621). Southern Power moves alternatively for summary judgment because “the undisputed facts show that Southern Power is entitled to judgment as a matter of law,” it said.

Cunningham's two TCPA claims are premised on Southern Power’s allegedly having been a d/b/a of Alabama Power, said the motion. Cunningham has no basis for believing, and in fact knows, Southern Power “is not the party that allegedly called him,” it said. He’s well aware his residential electrical service is with Alabama Power, not Southern Power, and it was Alabama Power that allegedly called him, it said.

Cunningham filed four lawsuits since 2018, and in two of them, he identified Alabama Power as one of his regular monthly utility expenses, said the motion. So Cunningham knows his residential electricity service is with Alabama Power, and not Southern Power, and “yet he insists on maintaining this action against the wrong defendant,” it said. That factor alone “mandates dismissal,” it said.

Southern Power is in the wholesale power business and doesn’t sell electricity to retail customers like Cunningham, said the motion. Southern Power and Alabama Power are “distinct entities,” it said. Neither owns, operates or controls the other, and Southern Power isn’t a d/b/a of Alabama Power, it said. Cunninham “alleges no basis to hold Southern Power responsible for Alabama Power’s alleged conduct, and there is no viable basis for doing so,” it said.

Southern Power didn’t make any phone calls to Cunningham, whether by using an automatic telephone dialing system, a prerecorded or artificial voice, “or otherwise,” said the motion. Since Southern Power doesn’t sell electricity directly to retail consumers, Southern Power had no business relationship with Cunningham and no debt to collect from him, “and thus had no reason to -- and did not -- call him," it said. For these reasons, his claim under the TCPA fails, it said.