Interpreting broadly the scope of standing to bring suit under the Telephone Consumer Protection Act (TCPA), the U.S. Court of Appeals for the Third Circuit has held that even an unintended recipient of an automated call is within “the zone of interests protected by the law” and has standing to sue the caller. Leyse v. Bank of America, No. 14-4073 (3d. Cir. Oct. 14, 2015). This decision potentially heightens the risk to companies that communicate with their customers in good faith but have no way of knowing who may pick up the phone when they call.

The Leyse decision by the Third Circuit involved roommates who shared a phone line. The first roommate was the subscriber who the defendant company intended to call. The second roommate answered the phone and, having no relationship with the company, sued alleging a violation of the TCPA based on lack of consent.  

The trial court dismissed the case for lack of standing, holding that the first roommate was the called party and, therefore, the second roommate could not bring suit because he was not the intended recipient of the call. The district court reasoned that the term “called party” under the TCPA means the intended recipient and not “an unintended and incidental recipient.”

On appeal, the Third Circuit reversed and held that the zone of interests protected by the TCPA encompasses more than just the intended recipients of automated calls and extends to regular users of the phone line. The court noted that lower courts have split over the question of who is entitled to sue under the TCPA as the “called party.” Some district courts have held that standing is limited to the intended recipient of the call. Other district courts have held that the subscriber or regular user of the phone has standing to sue. The Third Circuit concluded there were “good reasons to doubt” that the term “called party” should be limited to the “intended recipient,” but found that it did not need to determine that question to find that the plaintiff was within the zone of interests protected by the TCPA and therefore had standing to bring suit.  

The court did not address the merits of the case other than to suggest that the defendant caller may have a strong defense if, prior to placing the call, it received consent from the roommate with whom it had a business relationship. The court cited the July 10, 2015 Federal Communications Commission (FCC) Order which defines “called party” as the “subscriber” or “customary user” of the phone number, finding it is “reasonable for callers to rely” on “consent to receive robocalls” from either a subscriber or customer user. Under this standard, both roommates would likely qualify as called parties and consent from either would shield the defendant from liability.

The Third Circuit’s decision, which broadly interprets the scope of standing, implicates the ongoing problem of calls to phone lines with multiple subscribers and reassigned cell phone numbers, because under the Third Circuit standard the actual recipients of such calls, whether or not they were the intended recipients, would have standing to sue. In the FCC’s July 10, 2015 Order, the FCC acknowledged that approximately 100,000 cell phone numbers are reassigned to new users each day and that there is no systematic means by which a business may track or even know when a subscriber has relinquished a cell phone number and whether that number has been reassigned to another user. The FCC’s Order offered only a modest safeguard for callers who make calls without knowledge of reassignment; they may make one call after reassignment to gain actual or constructive knowledge of the reassignment, regardless of whether the called party answers the phone and alerts the caller that the number has been reassigned.

The FCC explicitly rejected the pragmatic argument that would have created a good faith exception to the TCPA’s strict liability standard by exempting from liability any call made in good faith to the number last provided by the intended call recipient, unless and until the caller has actual knowledge that the intended recipient has relinquished his or her cell phone number. That standard could be satisfied when the original cell phone subscriber notifies the caller that he or she has relinquished his or her cell number or when the party to whom the number has been reassigned notifies the company about the reassignment. The Third Circuit decision only exacerbates this problem by broadly interpreting standing to bring suit.