This article previously appeared on Ontario System's blog and is republished here with permission.
One case we have followed since July of 2016 is the District of Massachusetts, U.S. District Court case of Breda v. Cellco Partnership D/B/A Verizon Civil Action No. 16-11512-DJC. In this case, the defendant cell company had mistakenly associated plaintiff’s cellular phone number with a past due account. When calling to collect on the past-due account, the cellular phone company repeatedly placed calls to plaintiff’s cellular phone number using an autodialer and left prerecorded messages in error. At this point, I would imagine you have assumed the issue in this case is whether the calling party had the consumer’s consent to call. But alas, this is not the issue.
Unbeknown to the defendant, plaintiff had ported her cellular phone service and phone number from the defendant’s wireless service to a company that provides a wireline telephone service to customers using Voice over Internet Protocol (“VoIP”) technology. The issue in this case is whether the calls and prerecorded messages were made to a VoIP wireline service which is exempt from the TCPA.
Plaintiff sued defendant under the TCPA for contacting her on her VoIP service using an autodialer and leaving prerecorded messages without her consent in violation of 47 U.S.C. § 227(b)(1)(A)(iii). This section of the TCPA prohibits calls made 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.”
The question as to whether the TCPA extends to calls placed to a consumer’s VoIP service has created tremendous conflict of late. Courts are split as to whether calls placed to a VoIP service falls within the limits of Section 47 U.S.C. § 227(b)(1)(A)(iii). This case is one of the first to hold in favor of the defendant.
The Court granted the defendant’s motion for summary judgment for four reasons:
- Plaintiff’s phone number is not a per charge service or “assigned” to a service for which she was charged for the defendant’s calls because she paid a flat monthly fee for unlimited calls.
- VoIP telephone service is not a per se cellular telephone service. Rather it is a wireline service not protected by Section 227(b)(1)(A)(iii). VoIP technology allows a person to make voice calls using a broadband internet connection instead of a regular (or analog) telephone line.
- A cellular number ported to a VoIP service is not a cellular telephone service subject to the TCPA.
- There was no evidence that the defendant was aware, or that the plaintiff communicated in any capacity, that her VoIP telephone service was connected to a cell phone.
This case is refreshing but not definitive. Other courts may lean more heavily on the calling party to scrub for VoIP services before they place calls to consumers using their wireless numbers. Other courts may not place any duty on the plaintiff to notify the calling party he or she had ported her wireless phone to a wireline service. Other courts may mistakenly confuse the prohibition to extend to wireline as well as wireless services. I would encourage readers and their defense attorneys to be mindful of these issues and collaborate with experienced TCPA defense attorneys such as John Bedard, David Kaminski, or others on defense strategies.
See also this post by Rozanne Andersen for a general discussion of VoIP and whether calls to such phones are subject to the TCPA.
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