A New Jersey federal District Court recently granted a defendant’s motion for summary judgment and dismissed a proposed TCPA class action, finding that plaintiff’s receipt of a single unwanted telephone phone call was insufficient to confer Article III standing. See Leyse v. Bank of America, N.A., No. 2:11-07128-SDW-SCM, 2020 U.S. Dist. LEXIS 44234 (D.N.J. Mar. 13, 2020). The decision is a welcome victory for TCPA defendants. Despite a circuit split, the decision is significant given recent courts finding that receipt of a limited number of unsolicited calls or text messages under the TCPA is insufficient to confer Article III standing. See, e.g., Salcedo v. Hanna, 936 F.3d 1162, 1172 (11th Cir. 2019) (lack of Article III standing for receipt of an unsolicited text message) (see my prior article on this decision); Fenwick v. Orthopedic Specialty Inst., PLLC, No. 0:19-CV-62290-RUIZ/STRAUSS, 2020 U.S. Dist. LEXIS 21566 (S.D. Fla. Feb. 4, 2020) (no Article III standing for three unwanted text messages); Shuckett v. DialAmerica Marketing, Inc., No. 17cv2073-LAB (KSC), 2019 U.S. Dist. LEXIS 127049 (S.D. Cal. July 29, 2019) (one missed telemarketing call does not give rise to Article III standing).
Background
Plaintiff’s lawsuit was premised on a single telemarketing call on March 11, 2005. DialAmerica Marketing, Inc., on behalf of Bank of America, called the plaintiff’s residential telephone line. Upon answering the call, DialAmerica did not have a sales representative available to handle the call and, therefore, played a pre-recorded message. Significantly, the plaintiff was a Bank of America customer and also worked as an investigator helping his attorney prepare for TCPA lawsuits. In his role as an investigator, the plaintiff used a fake name and called companies to determine the number and frequency of their telemarketing calls. After receiving the DialAmerica call, plaintiff made more than twenty recorded calls to DialAmerica making similar inquiries to those he made in his capacity as an investigator. Notably, when twice asked by DialAmerica representatives if he wanted to be added to its Do-Not-Call list, Plaintiff declined.
The defendant moved for summary judgment arguing that: (1) the plaintiff lacked Article III standing to sue because he suffered no injury-in-fact; (2) the call was exempt from the TCPA under the FCC rules at the time because the parties had an established business relationship; and (3) the content of the prerecorded message did not violate the TCPA under FCC rules at the time. The Court held that each of the defendant’s arguments was a separate basis to grant summary judgment.
Article III and Statutory Standing
The Court held that the plaintiff did not have standing because he did not assert that he suffered nuisance, annoyance, or invasion of privacy. In fact, the Court noted that the plaintiff could not have asserted such an injury because he welcomed these calls in the course of his role as an investigator aiding his counsel in preparation of TCPA lawsuits. The Court found that the plaintiff lacked statutory standing for similar reasons noting that the plaintiff’s interests did not fall within the “zone of interests” protected by the TCPA, namely protection from invasion of privacy. The Court explained that the plaintiff had less of an interest in the privacy, peace, and quiet that Congress intended to protect “than even the houseguest who picks up an unwanted call—someone who does not fall under the TCPA’s zone of interests.”
EBR Protection
The Court also held that even if plaintiff had standing to litigate his claim, defendant was protected from TCPA liability for the March 11, 2005 call under the then-existing EBR exemption. Specifically, the Court held that under the FCC regulations in effect at the time, the TCPA did not apply to calls made by a business to customers with whom that business had an established relationship within the eighteen months preceding the call. The Court rejected the plaintiff’s argument that the exemption did not apply because the defendant intended to call plaintiff’s roommate, concluding the distinction appeared meaningless in light of past precedent holding that the “actual recipient” is the “called party” under the TCPA. The Court found that because the TCPA does not apply to calls made with the prior express consent of the called party, and an EBR effectively establishes consent, the exemption applied under the TCPA statute and regulation.
Content of the Call
The Court also held that the content of the call itself did not violate FCC regulations applicable at the time regarding abandoned telemarketing calls and dual-purpose calls. Specifically, the initial call contained a prerecorded message that was both lawful and required under applicable abandoned call regulations. Plaintiff argued that the call became an unlawful “dual-purpose call” (i.e., for both a lawful and unlawful purpose) when he called the number contained in the prerecorded message only to hear another prerecorded messaging containing an unsolicited advertisement for a credit card. The Court rejected this argument, finding that the dual-purpose doctrine did not apply to the abandoned call message that plaintiff received. The Court determined that the 2003 FCC Order created an exception for abandoned calls that provide a number for recipients to call to make a do-not-call request. The plaintiff was able to do precisely that – when he called the number in the abandoned call message, he was able to speak to representatives who asked if he wished to make a do-not-call request, which he declined to do.
Importance of Decision to TCPA Defendants
While the EBR exemption was eliminated by the FCC in 2012 with respect to telemarketing robocalls to residential lines, this decision underscores that for a plaintiff to succeed in a TCPA action in certain jurisdictions, he or she must allege a concrete injury. A cognizable injury-in-fact under the TCPA simply does not exist where the plaintiff does not assert an interest that falls within the zone of privacy interests Congress intended for the TCPA to protect. Where, as here, the plaintiff actively engages in investigations of this sort in the course of his occupation, or otherwise invites and welcomes such purported “unwanted” calls and/or text messages, defendants should consider raising standing issues to defeat a TCPA action.