Florida District Court Holds Whether Subscriber Or Person Who Answers Call Possesses TCPA Claim Depends On Circumstances

by Burr & Forman
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Cellco Partners v. Plaza Resorts, Inc., No. 12-81238-CIV, 2013 WL 5436553 (S.D. Fla. Sept. 27, 2013)

Plaintiff Cellco Partnership d/b/a Verizon Wireless filed a TCPA claim alleging millions of calls were placed to Verizon customers, approximately 27,678 of which were made to cell phones Verizon owns, pays for and provides to employees to conduct Verizon business.

The ultimate question presented in the case was who possessed the TCPA cause of action, Verizon or its employee, since the TCPA provides that it is a violation of the statute to make a call without the prior express consent of the “called party.” Noting that the phrase “called party” appears in Section 227 seven times, the Court also noted that phrase denotes the current subscriber four times, the person who answers the call once and cannot be pinned down by context the other two times.

Thus, the three possible interpretations of who is the “called party” possessing the TCPA cause of action are: (1) The subscriber always has a cause of action; (2) the person who answers the call always has a cause of action or (3) It depends on the facts and circumstances. The Court opted to adopt the latter approach, starting with the proposition that the subscriber controls the telephone for all legally relevant purposes, since the subscriber is the person who is obligated to pay for the telephone and has authority to consent to receive calls that would otherwise be prohibited. Since the subscriber controls the telephone for all legally relevant purposes, he or she can transfer use of the telephone, and all rights attendant to its use, to another. In most instances when the subscriber is an individual, he or she will be the primary user of the telephone and the recipient of the prohibited calls. Under such circumstances, the cause of action inures to the benefit of the subscriber. But when a subscriber transfers primary use of a phone to another, the subscriber also transfers to the primary user the right to consent to the receipt of otherwise prohibited calls and the right to any cause of action accruing as a result of the receipt of a prohibited call.

Applying this logic to situations where an entity as opposed to an individual is involved, the Court held that when the subscriber uses the telephone for business purposes, the subscriber retains the cause of action based on a call made to the business in violation of the statute. But if a business subscriber transfers a phone to an agent or employee for his or her primary personal use, the cause of action associated with any prohibited call is transferred to the agent or employee. In the current case, because Verizon alleged that it is the subscriber of the accounts, it pays the accounts and they are used by its employees for business use, Verizon possessed the cause of action.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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