A man who alleges he received an unauthorized prerecorded call on the landline he shared with his roommate has standing to proceed with his lawsuit under the Telephone Consumer Protection Act (“TCPA”), the U.S. Court of Appeals for the Third Circuit ruled.
Mark Leyse’s lawsuit against Bank of America alleges that a telemarketer advertising Bank of America credit cards called a residential landline registered to Genevieve Dutriaux, Leyse’s roommate, using a prerecorded message. Among other things, the TCPA generally prohibits making a non-emergency call “to any residential telephone line using an artificial or prerecorded voice” unless the caller has “the prior express consent of the called party” or the FCC has exempted the type of call at issue. The TCPA further states that “[a] person or entity” may sue based on a violation of that restriction, and may seek $500 in statutory damages for each violation (or $1,500 if the plaintiff proves the violation was willful or knowing).
The parties agreed that the telemarketer intended to call Dutriaux, who was listed as the subscriber to the phone line. Accordingly, Bank of America moved to dismiss Leyse’s lawsuit, arguing that Leyse was not the “called party” and thus had no standing to sue under the TCPA. Courts have disagreed on whether a TCPA plaintiff must be the “called party,” and if so whether the “called party” is the same as the “intended recipient.”
In Leyse’s case, the District Court agreed with Bank of America, dismissing Leyse’s suit after holding that, because Leyse was not the intended recipient of the call, he could not be the “called party” and thus had no standing. Among other things, the District Court had held that allowing unintended recipients to sue under the TCPA would mean that even callers who obtained the subscriber’s prior express consent could never be sure whether they would be held liable for calls answered by a different party.
In reversing the District Court, the Third Circuit held that, even if Leyse was not the “called party,” he was a person within the TCPA’s “zone of interests” because “a regular user of the phone line who occupies the residence being called undoubtedly has the sort of interest in privacy, peace, and quiet that Congress intended to protect.”
The appeals court noted that although Leyse “has alleged enough to survive a motion to dismiss,” in order to win he will have “to demonstrate that he answered the telephone when the robocall was received,” because “it is the actual recipient, intended or not, who suffered the nuisance or invasion of privacy” the TCPA is intended to remedy.
In addition, the Third Circuit noted that if Dutriaux — the subscriber to the phone line — had given Bank of America her prior express consent to receive prerecorded calls, that consent would shield Bank of America from Leyse’s claim. In other words, under the Third Circuit’s interpretation, even though Leyse, as a regular resident user of the phone line, may bring a TCPA suit against the caller, the caller nonetheless has a complete defense to liability if it has the prior express consent of the phone line’s subscriber.