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The latest decision in the ongoing dispute over whether calls placed to numbers assigned to voice over internet protocol (VoIP) services violate the Telephone Consumer Protection Action (TCPA) went in favor of TCPA defendants. Last week the United States District Court for the District of Massachusetts held that a company did not violate the TCPA by making calls to a number that was originally assigned to a cellular telephone but was ported to VoIP service. The court found that summary judgment was appropriate because once ported, the number was assigned to a VoIP service as a “wireline” and plaintiff was not charged on a per call basis. The case is Breda v. Cellco Partnership d/b/a Verizon Wireless
, Case No. 16-cv-11512-DJC, 2017 WL 5586661 (D. Mass. Nov. 17, 2017).
The court explained, that the elements of the TCPA claim at issue, which was brought pursuant to Section 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.” There was no dispute that the calls were made using an ATDS and were made without plaintiff’s consent. Thus, the court’s analysis as to whether the calls at issue violate the TCPA centered on two things: (1) whether plaintiff’s service was a per-charge service under the TCPA, and (2) whether VoIP is cellular telephone service under the TCPA.
In granting Cellco’s motion for summary judgment, the court quickly determined that plaintiff’s VoIP service was not a per-charge service because she had testified that she paid a flat monthly fee for unlimited calls.
The court then went on to reject plaintiff’s argument that the FCC’s interpretation of the TCPA “has shown that the term ‘cellular telephone service’ includes services that are similar in nature from the perspective of the consumer, such as VoIP.” The court found that VoIP service is not cellular telephone service per se and therefore not necessarily covered by the TCPA. Instead, the court reasoned, that whether a VoIP service is a cellular telephone service under the TCPA turns on the defendant’s knowledge. If the defendant knew the calls at issue were directed to a VoIP service that was being received by a cellular telephone, then those calls can support a claim under Section 227(b)(1)(A)(iii). Here, because plaintiff could not show that Cellco knew the calls were being received on a cellular phone, the court granted summary judgment in favor of Cellco.
This decision is consistent with prior TCPA cases involving VoIP services, and it appears the trend will continue to be that calls made to numbers assigned to VoIP services will only give rise to TCPA liability if the defendant knew that the calls were connecting to a cell phone.
The Breda decision also provides additional support for defeating class certification of TCPA claims. Determining whether a defendant knew that a VoIP number was assigned to a cellular phone would require proof for each putative class member.