Bank v. ICOT Holdings, LLC, 18-cv-02554 (AMD) (PK), 2024 WL 278460 (E.D.N.Y. Jan. 25, 2024)

Pro se Plaintiff, an attorney, filed a class action lawsuit alleging that two calls he answered at his mother’s house advertising hearing aids, violated the Telephone Consumer Protection Act, 47 U.S.C. § 227(b) because his mother’s phone number was on the National Do-Not-Call-Registry and nobody had given Defendant express written consent to call the number. Plaintiff filed a motion for summary judgment, placing at issue what constitutes a “called party.” The Court stated that to make out a claim under the TCPA, a plaintiff must show that: (1) the defendant called him as a “called party” on a residential line; (2) using an artificial or prerecorded voice; (3) without his consent. The Court also noted that the term “called party” includes the subscriber of a telephone number and one who, due to their relationship to the subscriber, is the customary user of the phone.

Rejecting Plaintiff’s argument that he was a customary user of the phone because he spends “a sizeable minority of his time” at his mother’s house and is allowed to use the phone when there, the Court pointed out that Plaintiff had not shown he had primary use of his mother’s phone, that he lived with her or that he paid the telephone bill for that line. “Rather, he is more like a frequent ‘houseguest’ or a ‘visitor who picks up the phone’—a category of users that the Third Circuit has opined ‘would likely fall outside the protected zone of interest’ under the TCPA.”

For these reasons, the Court denied Plaintiff’s motion for summary judgment. A copy of the opinion can be accessed by clicking here.

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