Burr & Forman

12.6.2017   |   Blog Articles, Consumer Finance Litigation, TCPA

Massachusetts District Court Finds VoIP Service is Not Cellular Service Per Se Under the TCPA

In Breda v. Cellco Partnership, No. 16-11512-DJC, 2017 WL 5586661 (D. Ma. Nov. 17, 2017), the plaintiff, Robin Breda (“Plaintiff”) claimed Cellco Partnership (“Cellco”) violated § 227(b)(1) of the Telephone Consumer Protection Act (“TCPA”) by calling her cell phone number with recorded messages regarding another person’s Verizon account. Under § 227(b)(1)(A)(iii) of the TCPA, calls “to any telephone number assigned to a paging service, cellular telephone service, . . . or any service for which the called party is charged for the call” made using an automatic telephone dialing system or artificial or prerecorded voice are prohibited “unless such call is made solely to collect a debt owed to or guaranteed by the United States.” 47 U.S.C. § 227(b)(1)(A)(iii). Cellco moved for summary judgment and to compel arbitration. The Breda court denied Cellco’s motion to compel arbitration, but allowed Cellco’s motion for summary judgment. The court found Plaintiff’s cell phone number received service through technology that preferred Voice over Internet Protocol (“VoIP”) service, Plaintiff paid a flat monthly fee for her service, and Cellco had no reason to know the number it was dialing went to a cell phone. As a result of these findings, the court found Plaintiff’s TCPA claim failed as a matter of law.

The elements of a TCPA claim under § 227(b)(1)(A)(iii) are “(1) the defendant called a cellular telephone service or a service for which the called party is charged on a per call basis; (2) using an [Automated Telephone Dialing System, (“ATDS”)]; and (3) without the recipient’s prior consent.” Breda, 2017 WL 5586661, at *3. The Breda court found Plaintiff was unable to raise a genuine issue of fact as to whether Cellco called a cellular telephone service or a service for which the called party is charged on a per call basis, and, therefore, allowed Cellco’s motion for summary judgment.

The court noted that, at the time the subject calls were made, Plaintiff’s phone number and service were with Republic Wireless (“Republic”). See Breda, 2017 WL 5586661, at *1. In exchange for service with unlimited monthly calls, Plaintiff paid Republic a fixed monthly fee. See id. at *1. The court determined that because Plaintiff paid a flat monthly fee for unlimited calls and was not charged on a per call basis, “[her] phone number [was] not ‘assigned’ to a service for which she was charged.” See id. at *3. Therefore, to establish a TCPA claim, Plaintiff needed to demonstrate that Cellco “called a cellular telephone service” when it called Plaintiff’s cell phone number.

Republic, however, provided service to Plaintiff’s phone number by “porting” the number to a third party which in turn provided VoIP service to Plaintiff’s number. See id. at *1. The third party’s VoIP service made Plaintiff’s number a “wireline” number instead of a cellular number, even though the number connected to a cell phone. See id. Cellco, therefore, argued that Plaintiff’s phone number was not “‘assigned’ to a cellular telephone service within the meaning of the TCPA.” Id. at *3. Plaintiff argued that the Federal Communications Commission (“FCC”) had interpreted “cellular telephone service” under the TCPA to include services such as VoIP which, from the consumer’s point of view, were similar to cellular services. See id. As a result, the court determined that the survival of Plaintiff’s claim “turn[ed] on whether VoIP service may be considered cellular telephone service as a matter of law.” Id. at *3.

The court acknowledged that few other courts had addressed the issue, but noted that courts addressing the issue had only given VoIP service the same TCPA protection as cellular service “when the plaintiff ha[d] raised genuine issues of fact that she ‘inform[ed] the [defendant] that the number connects to a cell phone’ . . . or . . . was charged additionally for the incoming calls to her VoIP service.” Id. at *4 (citations omitted). The Breda court adopted this approach and determined that “VoIP [service] is not cellular telephone service per se, but a defendant’s knowledge that the VoIP service is received by a cellular telephone can satisfy a claim under Section 227(b)(1)(A)(iii).” Id. The court also recognized that where courts had analyzed the TCPA and FCC guidance documents in other contexts, the courts had treated cellular service and VoIP service as distinct services. See id. Thus, the court concluded that to establish a claim under § 227(b)(1)(A) for calls made to a number with VoIP service, the plaintiff must show that the defendant was aware that the number dialed connected to a cell phone or that the plaintiff was charged on a per call basis. See id.

As discussed above, Plaintiff was not charged on a per call basis. Therefore, Plaintiff could not obtain TCPA protection for her VoIP serviced number unless she could show Cellco knew that the number connected to a cell phone. The court noted that Plaintiff had not presented any evidence that she had informed Cellco or that Cellco otherwise knew that the VoIP serviced number connected to a cell phone. See id. at *5. Therefore, the court found Plaintiff failed to establish that the calls at issue were received on a cellular telephone service within the meaning of the TCPA and her TCPA claims failed as a matter of law.

As the court pointed out, few courts have addressed the issue of VoIP serviced numbers that connect to cell phones. However, the court’s decision in Breda suggests that merely connecting to a cell phone number may not be sufficient to extend the TCPA protections given to cellular serviced numbers to VoIP serviced numbers.

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