Only a handful of courts have analyzed the issue of VoIP serviced phone numbers that connect to cell phones in the TCPA context, but the District of Massachusetts joined the fray with a recent summary judgment decision.
In moving for summary judgment in a TCPA case filed against it for calling a cell phone with recorded messages, Cellco Partnership asserted that because the plaintiff’s cell phone number received service through Voice over Internet Protocol (VoIP) technology, Cellco had no means of determining that the number it was dialing was intended for a cell phone. In Breda v. Cellco Partnership, No. 16-11512-DJC, 2017 WL 5586661 (D. Ma. Nov. 17, 2017), the court agreed that VoIP service is not cellular service under the express provisions of the TCPA.
To raise a successful TCPA claim, the plaintiff needed to prove that Cellco called a “cellular telephone service” when it called plaintiff’s phone number. At the time the calls at issue were made, plaintiff’s phone number and phone service were with Republic Wireless. Cellco asserted that plaintiff’s phone number was not assigned to a cellular telephone service because Republic “ported” plaintiff’s phone number to a third party which then provided VoIP service. This service by the third party led to plaintiff’s number being viewed as a wireline number instead of as a cellular number, even though the phone number itself was connected to a cell phone.
The court determined that the plaintiff’s TCPA claim failed because the plaintiff was unable to raise a genuine issue of fact as to whether Cellco’s recorded message reached a cellular telephone service or a service for which the called party is charged on a per-call basis. Plaintiff paid a fixed monthly fee for a service with unlimited monthly calls; the court reasoned that this flat fee for unlimited calls indicated that her phone number was “not ‘assigned’ to a service for which she was charged.” See id. at *3.