Last week a United States district court judge ruled that a company did not violate the Telephone Consumer Protection Act (TCPA) by making calls to a number that was assigned to VoIP because the consumer plaintiff was not charged for the calls. The case is Klein v. Commerce Energy, Inc., (Case No. 14-105, U.S. District Court, W.D. Pa. June 21, 2017).

A copy of the court’s opinion can be found here


In his third amended complaint, plaintiff Jeffrey Frank Klein (Klein) claims that numerous telephone calls made to him by Collectcents, Inc. (Collectcents) on behalf of Commerce Energy violated the Telephone Consumer Protection Act of 1991, 47 U.S.C. § 227 et seq., and constituted negligence and invasion of privacy under Pennsylvania law. 

The opinion in this case is 58 pages long.  The first nine pages of the opinion are an attempt by the court to provide a procedural history of the case and identify what facts were undisputed. It is clear from a reading of those nine pages that the parties agreed on very little and that the court had already spent considerable time and resources dealing with prior pleadings and hearings in the case. 

Pursuant to a collection Master Services Agreement (MSA) Collectcents provided debt collection services to Commerce Energy. Klein had a VoIP number ending in 0702, which was assigned to him for his Google VoIP service. Klein’s Google VoIP service is a free service. Klein also has Verizon cell service with the number ending in 7489 assigned to that service. 

Collectcents made “numerous” debt collection phone calls regarding another customer’s account to Klein’s VoIP number ending in 0702. In a footnote to the opinion the court wrote: “Collectcents’ records support approximately ninety calls, and by any fair characterization that would constitute numerous calls for the purpose of the court’s analysis.”  The calls were made in error as the 0702 number was incorrectly attached to that other customer’s account. 

The plaintiff claims that the calls to the 0702 VoIP number were then forwarded to his personal cell phone number.

The procedural status of the case was a hearing on the defendant’s motion for summary judgment. 

Editor’s NoteA motion for summary judgment is based upon a claim by one party (or, in some cases, both parties) that contends that all necessary factual issues are settled or so one-sided they need not be tried. The summary judgment is appropriate when the court determines there no factual issues remaining to be tried, and therefore a cause of action or all causes of action in a complaint can be decided upon certain facts without trial. 

In discussing the court’s role in ruling on a summary judgment motion the court wrote (citations removed): 

“One of the principal purposes of summary judgment is to isolate and dispose of factually unsupported claims or defenses. The summary judgment inquiry asks whether there is a need for trial—“whether, in other words, there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party.” In ruling on a motion for summary judgment, the court's function is not to weigh the evidence, make credibility determinations or to determine the truth of the matter, but only to determine whether the evidence of record is such that a reasonable jury could return a verdict for the nonmoving party.” 

The court then discussed Klein’s TCPA claim. The court wrote (citations again removed): 

“VoIP service, which is the service used by Klein and the service to which his 0702 number is assigned, is becoming more commonly used and is provided over broadband connection, cable modem, fiber to the premises (FTTP), digital subscriber line (DSL) or other wireline, and fixed wireless or other connections. The technology converts voice into a digital signal that travels through the internet. VoIP can be used with either a telephone (mobile or land-line) or a PC as the user terminal. This gives different modes of operation: PC to PC, PC to telephone, telephone to PC and telephone to telephone or mobile-to-mobile, all via the internet.” 

There was no dispute that the challenged calls were made to Klein’s VoIP number. The defendants dispute that they can be held liable under the TCPA for any of the calls because Klein cannot show that his VoIP service is a service for which he is charged for calls or even that he otherwise was charged for any of the calls. Klein argued that because the calls to his VoIP number were forwarded (at his request) to his personal cell number, he was charged for the calls and thus eligible for relief under the TCPA. 

The court disagreed: 

“Klein asserts that his VoIP service is not an unlimited calls/flat fee plan and therefore any calls deplete his store of minutes, meaning he is “charged” for the call. The problem with Klein’s argument is not with a flat fee plan versus an itemized VoIP minute plan; rather, it is that his argument wholly contradicts the record evidence that his actual Google VoIP service, which assigned him the number erroneously called, is free. Klein confronts the same problem with his argument that he is charged when the calls are forwarded to his Verizon Wireless service, arguably resulting in a violation of the TCPA, because the Verizon Wireless bills do not show any charges or any deduction from a bundle of minutes for the challenged Collectcents’ calls made to Klein’s VoIP number, whether forwarded or not. Klein failed to provide sufficient evidence for a reasonable jury to find that he was charged for any of the challenged calls as required by § 227(b)(1)(A)(iii).”

The opinion also discussed the plaintiff’s claim that Commerce Energy was vicariously liable for actions of Collectcents.  It also discussed the plaintiff’s other claims: 

The court wrote: 

“Vicarious liability under the TCPA may be established under a broad range of agency theories, including formal agency, apparent authority and ratification. The relationship between the parties is paramount in determining whether there can be vicarious liability. 

The collection MSA pursuant to which Collectcents performs debt collection services, including debt collection calls, labels the status of Collectcents as an “independent contractor,” but a label or express denial of status by the parties to a contract is not alone determinative and the court must consider the actual practice between the parties. 

Viewing the evidence in the light most favorable to Klein, the court concludes that Klein failed to adduce sufficient evidence for a reasonable jury to find, either directly or vicariously, a violation of the TCPA. The court further concludes that Klein’s negligence claim against Collectcents fails for lack of a violation of the TCPA and because the claim does not fall within one of the four scenarios for negligence causing emotional distress. The court finally determines that the claims against Collectcents and Commerce Energy for invasion of privacy are time barred. Accordingly, Collectcents’ motion for summary judgment with respect to Counts I, II and III and Commerce Energy’s motion for summary judgment with respect to Counts IV and V will be granted. Judgment will be entered against Klein and in favor of Collectcents on all counts against it and against Klein and in favor of Commerce Energy on all counts remaining against it.” 

insideARM Perspective 

This case did not get the notoriety of the Reyes, Jr. v. Lincoln Automotive Financial Services, which insideARM wrote about on June 23, 2017, but it involves another very important issue in TCPA litigation. It will be interesting to see whether this issue has additional legs as more and more people utilize VoIP services. 

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