This article previously appeared on Ontario System's blog and is republished here with permission.

Sadly, most people in the ARM industry –  including defense attorneys and judges – have little idea how to determine whether a Voice over internet Protocol (VoIP) call is subject to the TCPA.  How do you go about your analysis? First, let’s make sure you understand the definition of a VoIP call, know a bit about statutory construction, and recognize where you’re at risk.

You can download this document for additional clarification.  

What is a VoIP call anyway? How is it useful?

According to Webopedia, Voice over internet Protocol is a category of hardware and software that enables people to use the internet as the transmission medium for telephone calls by sending voice data in packets using IP rather than by traditional circuit transmissions of the PSTN. VoIP can turn a standard internet connection into a means of placing and receiving phone calls on free software. The practical upshot here is that by using some of the free VoIP software available to make internet phone calls, you’re bypassing the phone company (and its charges) entirely. Many businesses and consumers use VoIP technology to place and receive calls.

What does the TCPA say about VoIP calls?

Nothing.

There is no specific reference to the term VoIP or calls placed using voice over internet protocol in the TCPA’s text or its regulations.  However, within the context of restrictions placed on the use of automated telephone equipment and prerecorded messages to place calls to cellular phones, the TCPA seemingly grabs VoIP calls into the mix. In 47 U.S. Code § 227 (b)(1) the TCPA provides,

It shall be unlawful for any person within the United States or any person outside the United States if the recipient is within the United States—

(A) to make any call (other than a call made for emergency purposes or made with the prior express consent of the called party) using any automatic telephone dialing system or an artificial or prerecorded voice— …

(iii) to any telephone number assigned to a paging service, cellular telephone service, specialized mobile radio service, or other radio common carrier service, or any service for which the called party is charged for the call, unless such call is made solely to collect a debt owed to or guaranteed by the United States…

This section of the TCPA has been broadly interpreted to apply to calls placed to consumers who use a  VoIP service. 

Has there been any precedent set?

As reported in insideARM, the Fourth Circuit Court of Appeals ruled that calls made to a residential line using an autodialer can violate the TCPA if the residential line service charges for incoming calls. In Lynn v. Monarch Recovery Management, Inc., No. 13-2358, 2014 U.S. App. LEXIS 18858, — Fed. Appx.— (4th Cir. Oct. 2, 2014), the Fourth Circuit affirmed a District Court of Maryland decision holding a debt collector violated the TCPA when it used an (ATDS) to call a residential line that had been converted to a Voice over Internet Protocol (VoIP) service for which the debtor was charged a monthly rate, along with a fee for incoming calls and for transmission of incoming calls.

The called party was using a VoIP subscription that carried per-call charges to deliver numerous debt collection calls to the plaintiff. On the appeal, the court affirmed the lower court’s decision that because the VoIP service charged for incoming calls, it met the definition under the TCPA.

“… [t]he language of the TCPA goes beyond cell numbers, stating, “making any call…using any [ATDS] or an artificial or prerecorded voice…to any telephone number assigned to a paging service, cellular telephone service, specialized mobile radio service, or other radio common carrier service, or any service for which the called party is charged for the call.

But, at least one other court has held that when a VoIP app requires a flat, monthly fee without incurring charges for each call, that VoIP service is not a “service for which the called party is charged for the call.” Karle v. Sw. Credit Sys., No. 14-cv-30058, 2015 WL 5025449, at *6 (D. Mass. June 22, 2015). Additionally, several courts outside the Seventh Circuit have weighed in, concluding that the call-charged provision applies to VoIP apps. “Except where there is no evidence that the called party was charged for the call, courts generally” recognize that, when a plaintiff pays for services on a per-call basis, like paying for minutes on a cell phone, the plaintiff has a viable claim under 47 U.S.C. § 227(b)(1)(A)(iii). See Jones v. Experian Info. Sols., No. 14-cv-10218, 2016 WL 3945094, at *7 (D. Mass. July 19, 2016).

Little more has been done by the judiciary to advance the analysis of VoIP calls under the TCPA than conduct a literal reading of the statute. Most recently in June of 2017, the court in Baemmert v. Credit One Bank, N.A., once again ruled VoIP calls that trigger a charge to the called party on a per use basis were subject to the TCPA.

In this case, the plaintiff claimed the defendant’s collection agencies placed calls to his VoIP number using an ATDS without the plaintiff’s consent. The defendant disagreed and argued such calls were not placed using an ATDS; and if they were, the calls were received by the plaintiff’s VoIP line and were therefore not subject to the TCPA.

On the parties’ cross motions for summary judgment, the court disagreed with the defendant and ruled in favor of the plaintiff. As of this writing I am not aware of an appeal of this ruling. This court’s 18-page analysis is none the less worth noting.

The undisputed facts established plaintiff’s phone was not a functioning cell phone with cellular service. The cellular service had been disconnected due to nonpayment. However, the plaintiff was able to place and receive calls on the phone using a VoIP app he downloaded to his cell phone which worked only when he was connected to the internet. Since the app plan charged the plaintiff for calls placed and received on a per call basis, the court opined the calls were made using a “service for which the called party is charged for the call” under 47 U.S.C. § 227(b)(1)(A)(iii).

If a VoIP service charges on a per-call basis, that service falls under the broad statutory language, “any service for which the called party is charged for the call.” 47 U.S.C. § 227(b)(1)(A)(iii). Until courts begin to apply the proper rules of statutory construction to this provision of the TCPA, callers must treat VoIP calls as calls to cells when using an ATDS, prerecorded message or artificial voice.

See also Rozanne's opinion on the just released Breda v. Cellco Partnership case.

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