The District Court in the Northern District of Illinois, in Spiegel v. EngageTel Inc. (N.D. Ill. Mar. 29, 2019), granted summary judgment in favor of defendants EngageTel Inc. and its principal, Dennis Carlson, on certain claims, but left a claim under the Telephone Consumer Protection Act remaining. The District Court’s decision is significant in that it inferred potential liability for the company that provided callback numbers used in a telemarketing campaign and took a “totality of the circumstances” approach in determining whether a defendant, such as EngageTel, could be found to be the “maker” or “initiator” of a call.

The complaint, which was brought on behalf of plaintiff Marshall Spiegel and a putative class, alleged that the defendants took part in a scheme to inundate phone lines with calls containing fraudulent caller identification information for purposes of telemarketing and to collect “dip fees” associated with the calls. The Court’s decision noted that during discovery, Spiegel identified “approximately 81 calls.” The decision also identified several different contracting parties who were participants in the alleged scheme to make unsolicited and unwanted telemarketing calls. The Court’s decision further noted that EngageTel supplied virtual numbers as part of the alleged scheme as a means of remaining “under the radar” of online complaints about telemarketing calls, and there was also evidence that Carlson sent notices that warned about making calls to certain locations, such as Missouri, due to regulatory activity he considered unfavorable.

In denying summary judgment as to the TCPA claim, the Court first set out to determine whether the FCC’s 2015 Order on the “maker” of a call applied, or whether it could rely on the plain language of the TCPA. On this point, the Court ultimately held that the FCC’s interpretation was binding. The Court then determined that “[c]onsidering the totality of the facts and circumstances, multiple genuine factual disputes preclude summary judgment for EngageTel” as to the TCPA claim. Specifically, the Court found that genuine disputes existed over facts material to whether EngageTel’s actions—when looked at in their totality—deemed it the “initiator” or “maker” of the calls, as EngageTel effectively programmed the ATDS and supplied the virtual phone numbers, and because its principal, Carlson, suggested matching the area codes of the number being called and the number from which the telemarketing appeared to originate. The Court further held:

Taken cumulatively and in the light most favorable to Spiegel, this evidence is sufficient to create a genuine fact dispute over whether EngageTel is ‘so involved in the placing of a specific telephone call’ as to be deemed to have initiated it. As interpreted by the FCC, the TCPA imposes liability where a party ‘giv[es] the third party specific and comprehensive instructions as to timing and the manner of the call.’ Substantial fact questions surrounding the comprehensiveness and specificity with which EngageTel exerted control over [the] calling exist here. EngageTel’s motion for summary judgment on Spiegel’s TCPA claim must therefore be denied.

(internal citations omitted).

In sum, applying the 2015 FCC Order, the District Court held that a jury could find that EngageTel was so uniquely intertwined and involved with the making of the call that it could be deemed the “initiator” under the TCPA.

The Spiegel decision is noteworthy in that it signals to litigants that potential TCPA liability can be expanded in certain cases.