In Swope v. Credit Management, LP, 2013 WL 607830 (E.D.Mo. 2013), Judge Perry followed Soppett, holding that an unanticipated receiver of autodialed calls to a cellular telephone had standing to pursue a TCPA claim. The facts were as follows:
According to the complaint, defendant obtained an account receivable by Charter Communications and began making phone calls to collect the debt. Plaintiff Swope received several calls to her cellular phone in defendant’s attempt to collect a debt from someone named Kevin Koper, and at least five of those calls included prerecorded messages that automatically played when Swope answered the call. The message stated: “This call is for Kevin Koper. If you are not Kevin Koper, you will have a few moments to disconnect.” Swope disconnected the calls as instructed, but she was charged for each minute of phone service used on these calls. She alleges that the defendant used skip tracing services to obtain phone numbers for debtors who were difficult to locate, and they saved these numbers into their predictive dialer system without obtaining consent to call them. Defendant filed a motion to dismiss on the basis that Swope does not have standing to raise a TCPA claim because she was not the intended recipient of the phone calls. Plaintiff responds that the statute does not require the recipient of the call to have been the in-tended recipient in order to have standing under the TCPA. Defendant has also filed a motion to stay this case pending a decision by the FCC as to whether a predictive dialer falls under the prohibitions of the TCPA. Plaintiff argues in response that the FCC decision will not determine the outcome of this case because she alleges both use of a predictive dialer and use of prerecorded messages, and the FCC is not considering anything related to prerecorded messages. She also argues that the delay caused by the FCC’s ruling, if it decides to issue one, is unwarranted, especially considering that the FCC has twice ruled against the defendant’s position.
Judge Perry followed the Soppett analysis, and cited Soppett in a footnote.
Credit Management’s first statutory standing argument is based on its contention that only a “called party” has standing to raise a TCPA claim, and this plaintiff was not a “called party.” Looking at the language of the TCPA private right of action language above, there is no support for Credit Management’s argument. By its plain language, the TCPA grants standing to any “person or entity.” The only relevant reference to a “called party” in this section of the statute appears in one of the affirmative defenses to enforcement of the statute: a call made with the prior express consent of the called party. This does not in any way limit the class of people who may bring a cause of action under the statute to “called parties.” ¶ Plaintiff, who is a “person,” allege that Credit Management violated the terms of the TCPA by calling her cellular telephone through the use of a predictive dialer and prerecorded messages. Under the plain terms of the statute, plaintiffs allegations demonstrate that she adequately stated the elements of a TCPA claim, and thus has statutory standing to assert this claim against Credit Management. ¶ Furthermore, even if the TCPA limits standing to “called parties,” the plaintiff qualifies as a called party under the facts of this case. Numerous courts that have considered this issue have held a party to be a “called party” if the defendant intended to call the individual’s number, and that individual was the regular user and carrier of the phone. See, e.g., Agne v. Papa John’s Int’l, Inc., 2012 WL 5473719, at *5 (W.D.Wash. Nov. 9, 2012); Page v. Regions Bank, 2012 WL 6913593, at *5 (N.D.Ala. Aug. 22, 2012); D.G. ex rel Tang v. Siegel, 791 F.Supp.2d 622, 625 (N.D.Ill.2011). Plaintiff alleges that defendant intended to call this number, and she received these calls on her cell phone, which I agree is sufficient to qualify as a “called party” under the statute. ¶ Defendant makes a related, facial challenge to plaintiff’s statutory standing by arguing that she does not allege in the complaint that she is the “subscriber” to this cell phone. Based on my conclusion that plaintiff has standing if she is the regular user and carrier of the cell phone that is at issue in this case, plaintiff must allege these facts. However, there is no requirement in the statute that the plaintiff must actually be the “subscriber” to the cell phone. See also Page, 2012 WL 6913593, at *5 (classifying the plaintiff as the “subscriber” to the phone even though it was registered in his fiancee’s name because he was “the regular user and carrier of the cell phone, as well as the person who needs the telephone line to receive other calls”). Although she should have provided more specificity in her complaint as to her use and ownership of the phone, she alleges that the calls were made to “plaintiff Swope’s cell phone,” and she alleges that she was charged for each call. These allegations are adequate at this stage of the case. Therefore, I will deny defendant’s motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1).
Judge Perry also declined to stay the case pending a ruling by the FCC under the ‘primary jurisdiction’ doctrine.
As an initial matter, Credit Management contends that the viability of the plaintiff’s claim is completely dependent on the ruling of the FCC. This is not correct. Plaintiff’s second amended complaint alleges violations of the TCPA through the use of an auto-matic telephone dialing system and through the use of artificial or prerecorded messages. From the plain text of the statute, each of these violations is independently actionable; plaintiff may recover damages for calls made “using any automatic telephone dialing system or an artificial or prerecorded voice.” 47 U.S.C. § 227(b)(1)(A) (emphasis added). Therefore, even if the primary jurisdiction doctrine should be invoked for the claims related to the automatic telephone dialing system, plaintiff’s claims regarding the use of an artificial or prerecorded voice are appropriately before this court, regardless of the FCC’s decision. ¶ Regarding the plaintiff’s claims related to Credit Management’s alleged use of an automatic telephone dialing system, Credit Management argues that the FCC has primary jurisdiction over this matter. This argument is based on the FCC’s issuance of a public notice for comments regarding whether it should reconsider its prior rulings that predictive dialers used by debt collection companies fall within the scope of the TCPA. Using the above factors set forth by the Eighth Circuit regarding primary jurisdiction, I conclude that invoking the doctrine is not appropriate in this case, and I will deny the motion to stay.