Long ago it was argued that calls to VOIP lines that were forwarded to cell phones automatically triggered the TCPA’s provisions under 227(b)(iii). That was a terrible rule and I had to put a stop to it.
I earned one of the first decisions in the nation rejecting that argument. But there was a downside–the rule was established that VOIP users who were charged per call had standing to sue under the alternative provisions of the subsection. See Karle v. Sw. Credit Sys., No. 14-30058-MGM, 2015 WL 5025449, at *6 (D. Mass. June 22, 2015).
That law has been applied more or less consistently ever since. But some folks still like to swim upstream–which I can respect. Especially when the charge per call is microscopic.
In Perrong v. Victory Phones LLC CIVIL ACTION No. 20-5317 2021 U.S. Dist. LEXIS 132404 (E.D. Pa. July 15, 2021) the Defendant moved to dismiss the plaintiff’s claim arguing that calls to a VOIP number do not trigger the TCPA. It didn’t go well.
After initially rejecting Defendant’s (bad) “repeat player” argument–more on that below–the Court spent some time analyzing the thrust of Defendant’s motion, whether calls to a number that is not assigned to a wireless service provider might, nonetheless, trigger the TCPA’s provisions under 227(b)(iii). Consistent with the old Karle case the Court found that it did–even though the cost per call was $.017. Eesh.
The Court’s analysis was pretty simple. The statute says a person can sue if calls are made to a number for which the called party is charged per call. Perrong was charged for the call. The low amount is immaterial the court reasoned; any amount of a charge is sufficient to trigger the statute. So Perrong can turn 1.7 cents into $500.00 (or more); an investment return that makes NFT profits look downright puny. (Hey math nerds, isn’t that a 5 MILLION percent return on investment?)
And it was an investment–at least according to Defendant.
In Defendant’s view of the world Perrong is a repeat player that was intentionally laying a trap for callers by intentionally paying per call for his VOIP service.
The problem, of course, is that Defendant couldn’t prove it. It just lobbed the argument at the pleadings stage like so many other Defendants have done (unsuccessfully.)
And once again my beautiful perfect victory in Stoops gets trampled upon.
For the uninitiated, in Stoops my team earned a ruling that should have shut down manufactured lawsuits for all time. But defendants continuously misapply it and–over time–the decision has become watered down and so much bad precedent now exists.
The Perrong court really highlights the issue:
The Court declines, at this time, to find that Mr. Perrong lacks the interests that the TCPA is designed to protect. So doing, it rejects Victory Phones’ argument—as has become routine for defendants in TCPA suits to advance—that this case should adopt the reasoning of the Western District of Pennsylvania in Stoops v. Wells Fargo Bank, N.A. 197 F. Supp. 3d 782 (W.D. Pa. 2016).
I mean, gees. Ouch. My poor (awesome) victory has now become the stuff of mindless boilerplate.
They say that imitation is the highest form of flattery, but poor imitation isn’t flattering– its kind of insulting.
The Czar didn’t become the Czar by just tossing stuff out there. Hard work goes into it.
The court in Stoops held that the plaintiff lacked statutory standing at the summary judgment stage and with the benefit of discovery. There was no doubt about Ms. Stoops’ admitted intentions. Here, by contrast, Mr. Perrong’s declaration submitted with his response to the motion states that he does “not maintain any telephone numbers for the purpose of bringing lawsuits.” Doc. No. 30-1 ¶ 18. And the parties have not proceeded to summary judgment, much less engaged in discovery.
Every time Stoops is raised at the pleadings stage it seems that the Defendant loses and the doctrine of Stoops (and my hard work) gets watered down. So let’s stop doing that now, ok?
In any event, couple of take aways here:
- Don’t raise Stoops at the pleadings stage and lose because, if you do, I will complain about it. Loudly.
- More importantly, remember that calls to “landline” numbers that are assigned to VOIP services for which the called party is charged per call DO give rise to TCPA claims. That’s been the law for about 6 years now but its good for folks to have a reminder once in a while.
- If it seems unfair that a guy who brings a bunch of TCPA suits can (seemingly) intentionally sign up for an obscure VOIP package that charges him for calls and then sue the caller for $500.00 if the call is made using regulated technology and without consent… welcome to TCPAWorld.
- Also remember that calls to landlines may still be treated as calls to cell phones more broadly. This is dangerous stuff.
There are vendor solutions that can help you identify calls that are VOIP and other vendor solutions that can assure you are not using technology that triggers the TCPA to begin with. Always happy to help.
Happy Monday. (Unrelated, did you see that Vegas isn’t even going to hit 100 during the Palooza? I win even when it comes to the weather…)