Antitrust Law Daily Wrap Up, PRIVACY—W.D. Mich.: TCPA pleadings must include cellular telephone numbers called, (Apr 21, 2014)

By Edward L. Puzzo, J.D.

In claims brought under the Telephone Consumer Protection Act, pleadings are defective without the inclusion of the cellular telephone number alleged to have received the calls in question, the federal district court in Grand Rapids, Michigan, has ruled (Strand v. Corinthian Colleges, Inc., April 17, 2014, R. Bell.).

Tiffany Strand alleged that her cellular phone was the recipient of numerous automated pre-recorded calls from Corinthian Colleges soliciting her to enroll in classes which they offered. She alleged that the automated calls continued after she notified them they she was not interested in Corinthian’s offerings. Strand later brought a claim against Corinthian College under the Telephone Consumer Protection Act (TCPA). Corinthian then moved to dismiss, alleging that the pleadings failed to provide fair notice of what the claim was and the grounds upon which it rested. Specifically, Corinthian alleged that the pleadings failed include the telephone number that served as the basis for the complaint, and the time and date of each purported violation.

Plain language of statute. The court stated that it must give effect to the plain language of the statute: Section 227(b)(1) of the TCPA was violated when the defendant made a call, using an automatic dialing system or prerecorded or artificial voice, to a telephone number assigned to a cellular telephone. The court noted that Strand was able to cite one Florida case for the proposition that she was not required to include the cellular telephone number allegedly called in her pleadings; Corinthian was unable to cite a specific authority for the proposition that pleading of the cellular telephone number was required. The Sixth Circuit has not specifically crafted the required elements of a Section 227(b)(1) violation, the court continued.

Given that the plain language of the statute refers to a “telephone number assigned to a … cellular telephone service,” inclusion of the telephone number in question must be included in the pleading in order to raise the right to relief above a speculative level, the court reasoned. Otherwise, TCPA defendants are forced to make educated guesses as to which telephone number belongs to the plaintiff, the court explained. Consequently, based upon the failure to include the cellular telephone number called, the court dismissed Stand’s claim for failure to state a claim upon which relief can be granted.

The case is Civil Action No. 1:13-CV-1235.

Attorneys: Sergei Lemberg (Lemberg & Associates LLC) for Tiffany Strand. Kevin Patrick Jacobs (Homer Bonner Jacobs) for Corinthian Colleges, Inc.

Companies: Corinthian Colleges, Inc.

Cases: Privacy MichiganNews