A federal district judge in Massachusetts issued a summary judgment ruling in favor of Verizon in a putative TCPA class action that promises to fan the flames in the growing debate over TCPA liability for calls made to numbers assigned to Voice over Internet Protocol (VoIP) services, particularly given that the case is now on appeal to the First Circuit.

In Breda v. Cellco Partnership (dba Verizon Wireless), the named plaintiff was a former Verizon Wireless customer. Because it had the wrong contact information, Verizon repeatedly called the plaintiff’s number in error for the purpose of discussing another Verizon customer’s account status using prerecorded messages. 

At the time, the plaintiff had moved her cellular phone service and number from Verizon to Republic Wireless, a company that uses VoIP technology to transmit its customers’ calls. Because Republic did not have direct access to the phone numbers, it “ported” (i.e., transferred) the plaintiff’s number to a company called Bandwidth that provided the actual VoIP services to Republic’s customers.

Discovery showed that Bandwidth did not provide cellular services or numbers, however, and instead provided only “wireline” (i.e., traditional landline) numbers. Further, the plaintiff paid only a fixed monthly fee charged by Republic and was not charged by Verizon on a per-call basis for the calls at issue. Verizon moved for summary judgment in early May 2017, arguing that the calls at issue fell out of the purview of the TCPA. About a month later, Verizon also moved to compel arbitration, using as the basis an arbitration clause in the plaintiff’s former customer agreement with Verizon.

On Nov. 17, 2017, U.S. District Judge Denise J. Casper issued her rulings on both motions. Initially, the judge denied Verizon’s motion to compel arbitration on the grounds that the calls at issue did not relate to or arise out of the plaintiff’s service received when she was a Verizon customer or the agreement governing that service. 

Nevertheless, the judge ultimately ruled in favor of Verizon on summary judgment, holding that (i) although there can be TCPA liability, VoIP service is distinct from cellular phone services and thus is not per se cellular telephone service within the TCPA, and (ii) “if any claim for a violation of Section 227(b)(1)(A) [of the TCPA] arising from phone calls to a VoIP telephone service exists, the plaintiff must show either that the defendant was aware that the VoIP telephone service connected to a cellular phone or that she was charged pro rata for the relevant calls.” 

In this regard, the judge focused primarily on the fact that the plaintiff paid only a flat monthly fee to Republic for unlimited calls. Moreover, the judge rejected the plaintiff’s arguments that the number Verizon called had been “assigned” to a cellular telephone service, even though she had received the number from Verizon originally, because Republic had ported the number to Bandwidth, which provided only VoIP services. Thus, once the plaintiff “changed her phone service to Republic, who in turn ported her number to Bandwidth to offer her VoIP-preferred service, it became indistinguishable from a VoIP phone number.” The plaintiff also did not provide the court with any evidence that Verizon was aware or that she had communicated to Verizon that her VoIP service was connected to a cellular phone.

Plaintiff appealed to the First Circuit on Jan. 11, 2018. 

To read the full order in Breda v. Cellco Partnership, click here.

Why it matters: The decision adds to the ever-widening list of federal district court opinions recognizing that calls made to VoIP numbers may trigger TCPA liability if the called party incurs a charge for the call, including recent decisions by courts in New York, Pennsylvania and Wisconsin, except this time the court held in favor of the defense. Further, in addition to the issue of call charges, the question of whether a call to a VoIP number could subject a caller to TCPA liability turned in this case on (i) the defendant’s knowledge (i.e., whether it had notice that the cell number had been moved to a VoIP service) and (ii) the VoIP service provider (i.e., whether the service provider provided cellular services and numbers rather than or in addition to wireline numbers). This case also shows that just because a phone number starts as a cellular number does not mean that it will still be one at the time of the call.