One of the many criticisms of the Telephone Consumer Protection Act (TCPA), enacted in 1991, is that it has not kept pace with developments in communications technology. Instead, the Federal Communications Commission (FCC), the courts, and litigants have tried to bridge the gap between the TCPA’s language and rapid changes in how calls, texts and faxes are sent. A perfect example of this discord is evident in “Voice over Internet Protocol” (VoIP) technology, which allows users to make phone calls over the Internet. This technology did not exist when the TCPA was enacted. Two recent decisions, from different US District Courts, show how courts are approaching the question of whether and where VoIP fits within the TCPA framework.
Voice over Internet Protocol – The Basics
VoIP works by routing calls to a cell phone either directly through the Internet, or through an adapter connected to a traditional landline. VoIP technology can generally be used to route calls to different numbers or to a single cell phone number. VoIP technology also facilitates other common means of communications, including Skype, FaceTime, Google Voice, and Hangouts.
Read prior Eversheds Sutherland Legal Alerts discussing VoIP issues.
Two Recent VoIP Decisions
Two recent District Court decisions highlight the significance of VoIP calling being largely free of cost for the called party, and the implications for defendants involved in TCPA litigation.
Most recently, the District of Massachusetts added to the growing number of decisions that recognize that calls made to VoIP numbers may trigger TCPA liability if the called party incurs a charge for the call. In Breda v. Cello P’ship, No. 16-11512-DJC (D. Mass. Nov. 17, 2017), the named plaintiff in a putative class action was a former Verizon Wireless customer who alleged she continued to receive calls from Verizon in error allegedly in violation of the TCPA’s prohibition against auto-dialed calls made to cell phones without consent, even after terminating her account.
When she allegedly received these calls, the plaintiff had subscribed to Republic Wireless, a telephone service that uses VoIP for the transmission of calls. Republic “ported” or transferred the plaintiff’s phone number to Bandwidth, a third party that provides VoIP service, by connecting the call to the plaintiff’s cell phone. Significantly, the plaintiff paid a fixed monthly fee for this service and was not charged for each of Verizon’s mistaken calls.
Verizon moved for summary judgment, claiming that the calls to the plaintiff fell outside of the TCPA’s protections under Section 277(b)(1)(A)(iii), which provides that it is unlawful to make a call, other than those made for emergency purposes or with the prior express consent of the called party, using an automatic dialing system or artificial voice to a telephone number assigned to a cellular telephone service, or any service that charges the called party for the call (emphasis added). The court interpreted this provision to require that the defendant: (1) call a cellular telephone service, or a service for which the called party is charged on a per-call basis; (2) using an auto-dialer; and (3) without the recipient’s prior consent.
The court held that VoIP telephone service is not cellular telephone service per se under the TCPA, and thus it is not generally subject to Section 277(b)(1)(A)(iii). Further, the court found that where a defendant has no knowledge that a cellular subscriber uses VoIP services, liability may not attach under Section 227(b)(1)(A)(iii). In granting summary judgment for Verizon, the court focused primarily on the fact that under her plan with Republic, the plaintiff paid a flat monthly fee for unlimited calls rather than paying for each call. The court also reasoned that the plaintiff’s number became indistinguishable from a VoIP number once she switched to Republic, because her number was ported to offer VoIP-preferred services. The plaintiff also provided no evidence that she communicated to Verizon that her VoIP service was connected to a cellular phone.
The Breda decision follows a similar case from the Western District of Pennsylvania, where the court held that TCPA liability was not triggered by calls made to the plaintiff’s free Google VoIP service number. In Klein v. Commerce Energy, Inc., 256 F. Supp. 3d 563 (W.D. Pa. 2017), the court interpreted the statutory language of Section 227(b)(1)(A)(iii), which requires a plaintiff to establish that a call was made to one of five categories of “receptors”:
(1) a paging service,
(2) a cellular telephone,
(3) a specialized mobile radio,
(4) a common carrier service, or
(5) any service for which the called party is charged for the call.
Following the statute, the court took special notice that the calls were dialed to the number assigned to the plaintiff’s free VoIP service, and no calls were made directly to the number assigned to a cellular (non-VoIP) telephone service. Accordingly, the court held that free VoIP services do not fall within the scope of TCPA protection.
Where do we go from here?
There are still only a handful of TCPA decisions analyzing whether VoIP technology implicates liability under the TCPA. As the technology continues to evolve, these decisions can be used as guideposts for companies seeking to maintain compliance with the TCPA and avoid potential high-dollar liability for violations, however inadvertent or unknowing they may be. Providers and litigants should receive additional guidance in the coming months, because the plaintiff in Breda is currently appealing the dismissal of her suit to the US Court of Appeals for the First Circuit. That will be the first circuit court decision on VoIP and the TCPA.
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