Antitrust Law Daily Wrap Up, CONSUMER PROTECTION—S.D. Cal.: Standing under the TCPA not limited to cell phone subscriber, (Jan 28, 2014)

By Jody Coultas, J.D.

Progressive Casualty Insurance Company could be held liable under the Telephone Consumer Protection Act (TCPA) for calling a cellular telephone number using an automatic dialing system in order to collect a debt from a third party, the federal district court in San Diego has held (Olney v. Progressive Casualty Insurance Company, January 24, 2014, Curiel, G.).

The plaintiff alleged that Progressive used an automatic telephone dialing system to call him multiple times in order to collect an alleged debt from an unknown third party in violation of the TCPA.

Progressive argued that the plaintiff lacked standing because only the “called party” has statutory standing to bring suit under the TCPA and the “called party” is the “intended recipient” of the call. That argument has been rejected in no less than 20 cases that were factually similar to the instant case. The phrase “intended recipient” does not appear anywhere in the TCPA. Thus, Progressive’s argument was rejected. The plaintiff countered that anyone has statutory standing to bring suit under the TCPA. However, this approach has also been rejected. A subscriber of the telephone number called who has standing to sue for violations of the TCPA, according to the court.

The regular user of a cellular telephone has standing to bring a claim under the TCPA, regardless of whether he is responsible for paying the bill, according to the court. Progressive could not cite a single case to support its argument that only the individual whose name appeared on the bill for the telephone number called had standing.

The TCPA makes it unlawful to make phone calls using the prohibited methods “to any telephone number assigned to a paging service, cellular telephone service, specialized mobile radio service, or other radio common carrier service, or any service for which the called party is charged for the call.” The Federal Communication Commission may exempt calls to a telephone number assigned to the cellular telephone service that are not charged to the called party. If the TCPA did not include calls to a telephone service that are not charged to the called party, the FCC exemption would be unnecessary. Even if the court held that only the person responsible for the bill had standing to bring suit, the plaintiff had standing because he was both the regular user and incurred a charge due to Progressive’s calls.

Progressive argued that callers are exempt from liability under the TCPA if made for the purpose of debt collection, regardless of who answers the phone. Specifically, Progressive argued that the intended recipient of the calls consented to being contacted at the phone number provided. Autodialed calls to wireless numbers provided by the called party in connection with an existing debt are made with the prior express consent of the called party and are permissible. However, the called party in this case was the plaintiff, and he had not consented to the calls and had not incurred the debt. Finding Progressive exempt from liability under TCPA, regardless of whose cell phone number is called, would leave an individual who receives prerecorded messages simply because he has a phone number that previously belonged to a debtor without recourse.

The court declined to dismiss the plaintiff’s cause of action for treble damages. Progressive sought dismissal of the cause of action for treble damages on the ground that the plaintiff failed to allege that Progressive acted knowingly or willfully. Progressive’s TCPA violations after it was notified that it was calling the wrong number would have been willful, or made with reckless disregard.

The case is No. 3:13-cv-2058-GPC-NLS.

Attorneys: Abbas Kazerounian (Kazerounian Law Group, APC) for Peter Olney. Meryl C. Maneker (Wilson Turner Kosmo LLP) for Progressive Casualty Insurance Co.

Companies: Progressive Casualty Insurance Company

Cases: ConsumerProtection Privacy CaliforniaNews