The “call-charged” provision of the Telephone Consumer Protection Act (TCPA) applies to a residential landline for a call charge made by a Voice over Internet Protocol (VoIP) service provider, the Fourth U.S. Circuit Court of Appeals has determined.
In an unpublished opinion, the three-judge panel gave little credence to the defendant debt collector’s concerns that callers have no way of knowing whether the number they are dialing will result in a charge to the recipient that could possibly lead to TCPA liability.
Plaintiff Kevin M. Lynn sued Monarch Recovery Management, Inc., alleging violations of the TCPA, the Maryland state analogue and the Fair Debt Collections Practices Act. He claimed that Monarch made approximately 40 calls to his home number in an effort to collect debts on accounts belonging to a former resident of the home.
Lynn subscribed to VoIP service through Swiftvox, which charged for each incoming call to the number as well as the transmission of caller ID information for incoming calls. For each of the calls from Monarch to Lynn (made by an automatic telephone dialing system), he was charged $0.0149 per minute and $0.00149 for each transmission of caller ID.
As the basis for his TCPA suit, Lynn alleged that Monarch violated the statute’s “call charged” provision, 47 U.S.C. Section 227(b)(1)(A)(iii), which makes it unlawful to use an automatic telephone dialing system (ATDS) to call “any telephone number assigned to . . . any service for which the called party is charged for the call.”
Monarch moved for summary judgment, arguing that the calls should be subject to the Federal Communications Commission’s exception for debt collectors making calls to residential telephone numbers found at Section 227(b)(1)(B). The provisions of Section 227(b)(1)(A)-(D) are meant to be mutually exclusive, Monarch told the court, and the exemption for calls made by debt collectors to residential telephone lines made by an ATDS should not be ignored by applying the “catch-all” call-charged provision.
While the federal district court acknowledged that “Monarch’s interpretation is not wholly implausible, and may be more sensible given the difficulty of determining whether a called number is attached to VoIP service and thus subject to the TCPA’s call- charged provision,” the judge granted summary judgment to Lynn.
On appeal, the Fourth Circuit affirmed summary judgment for the plaintiff in a brief, unpublished per curium opinion.
“We conclude that the call-charged provision’s plain language encompasses Monarch’s calls to Lynn,” the panel wrote. “Moreover, we reject Monarch’s attempt to escape the clear breadth of the call-charged provision by relying on the FCC’s regulation excepting debt collectors from the TCPA’s separate prohibition on ‘call[s] to any residential telephone line using an artificial or prerecorded voice to deliver a message,’ and several rules of statutory interpretation. Indeed, Congress’ purpose in enacting the TCPA advises against Monarch’s effort to limit its liability.”
To read the district court opinion in Lynn v. Monarch Recovery Management, click here.
To read the Fourth Circuit decision, click here.
Why it matters: As Monarch pointed out, debt collectors have no way of knowing prior to placing a call whether the number dialed is serviced by VoIP technology that could present the possibility of liability under the TCPA. Nevertheless, the Fourth Circuit refused to consider the practical implications of defendant’s argument. Debt collectors already face limits under the statute (collection calls made using an ATDS or a prerecorded voice message cannot be made to cellphones), and the Fourth Circuit’s opinion – albeit unpublished and therefore not binding precedent – presents additional challenges when making collection calls.