At least two courts have recently dismissed TPCA claims where the plaintiffs appeared to manufacture standing. In Telephone Science Corp. v. Asset Recovery Solutions, the Northern District of Illinois dismissed a TCPA complaint brought by a plaintiff whose business model involved the intentional receipt of autodialed or prerecorded calls. There, the plaintiff, Telephone Science Corp. (“TSC”), operated a service called “Nomorobo,” designed to block certain unwanted calls. TSC uses a “honeypot” of telephone numbers, analyzes calls made to those numbers to identify numbers that TSC’s service identifies as being made using an autodialer or artificial or prerecorded voice calls, and then blocks calls made to Nomorobo subscribers made using those identified numbers.
TSC alleged that defendant, Asset Recovery Solutions (“ARS”), placed over 12,000 calls to TSC’s Voice Over Internet Protected (“VOIP”) “honeypot” numbers, for which TSC is charged for incoming calls. In an order entered on August 8, 2016, the court held that TSC had alleged an injury in fact as a result of the charges totaling $5.60 incurred from ARS’s incoming calls. However, the court concluded that the claim fell outside the TCPA’s “zone of interest.” The court identified several interests protected by the TCPA, including “individual privacy rights, public safety interests, and interstate commerce,” and observed that those interests were supported by the “principle that a person or business should be free from nuisance and robocalls and their associated costs.” In this case, the court found that TSC did not suffer any injury of invasion of privacy or nuisance, and the supposed harm suffered by TSC does not impact interstate commerce. The court stated that, even if construed in the light most favorable to Plaintiff, the damages were not of the nature sought to be redressed by Congress, but rather “indirect, economic and inherent to its business,” and, accordingly, dismissed the complaint.
The court in Telephone Science Corp. relied in part on a recent decision by the Western District of Pennsylvania dismissing a TCPA suit brought by an individual that the Court describes as a “professional plaintiff.” In Stoops v. Wells Fargo Bank, N.A., the plaintiff admitted that she purchased cell phones solely in order to receive calls intended for the prior subscribers of reassigned numbers. The court first addressed constitutional standing and cited to the Spokeo v. Robins decision (previously discussed here) to explain that Article III standing requires a plaintiff to have suffered an injury-in-fact, a particularized harm that affects the plaintiff in a personal and individual way. The court found that the plaintiff failed to satisfy this threshold because she had not shown that her privacy and economic rights had been violated when she willfully purchased cell phones expecting them to be called for purposes of filing future TCPA claims. The court also found that the plaintiff was not within the “zone of interest” that Congress intended to be protected by the TCPA and thus failed to satisfy the requirements for prudential standing.
Taken together, Telephone Science Corp. and Stoops show that courts may not allow TCPA cases to proceed where they were brought by those who, in effect, invite autodialed or prerecorded calls for commercial purposes. It remains to be seen whether other courts will apply this logic, and in what circumstances.