District Court (Oh.) Says TCPA Protects Subscriber Who Was Not the Party Who Actually Answered the Call

In Maraan v. Dish Network, L.L.C., 2014 WL 6603233 (S.D.Ohio 2014), Judge Spiegel, found that a subscriber to a cellular telephone service had standing under the TCPA even if the subscriber was not the party who actually answered the call.

On summary judgment, however, Defendant has reversed course on this issue, and now maintains that Plaintiff, because he is merely the subscriber, lacks standing as well. Instead, only the intended recipient—which Defendant conflates with the phrase “called party” as it appears in the statute—can sue. Failing that interpretation, Defendant proffers yet a different restriction, one that limits standing to the actual recipient of the calls so long as he answers them on a cell phone that he regularly uses and carries. Either scenario quite obviously excludes Plaintiff. The intended recipient of the calls was DISH’s delinquent customer, who is not a party to this litigation and whose identity remains concealed under protective order, the irony of which is not lost upon this Court. Discovery revealed the actual recipient to be B.M.M., who regularly uses and carries “his” cell phone courtesy of the subscription paid for by his grandfather.  DISH seeks the proverbial “Get Out of Jail Free” card here, apparently hoping this Court will decide that, in this particular circumstance, no one has standing to sue under the TCPA. ¶ Plaintiff himself did not receive any calls from DISH on the cell phone that he regularly uses and carries, nor was he present when his grandson received such calls on the “7023” number. Maraan dep. at 32:17–22, 33:9–13 (PAGE ID: 334, 335). ¶ We find Defendant’s arguments unavailing, as did Judge Groh in Moore v. DISH Network, L.L.C., No. 3:13–CV–36, 2014 WL 5305960 (N.D.W.Va. Oct. 15, 2014). She opined, as do we, that “status as the subscriber of the cell phone alone” confers standing. Id. at *10. See Gutierrez v. Barclay’s Group, No. 10cv1012 DMS (BGS), 2011 WL 579238, at *5 (S.D.Cal. Feb. 9, 2011) (“[T]he TCPA is intended to protect the telephone subscriber, and thus it is the subscriber who has standing to sue for violations ….”). The plain language of the TCPA allows a “person or entity” to bring an action under the statute. See 47 U.S.C. § 227(b)(3). Clearly a subscriber falls within this ambit, and, just as clearly, there is no restriction to, or even mention of, a “called party” or a “recipient” (intended or otherwise) in this subsection of the statute. Therefore, “because it has no support in the statute’s plain terms [,]” we join the Moore court, and several others, that reject the notion that only the “called party”—again defined by DISH as the intended recipient of the call-has standing to sue. See Moore, 2014 WL 5305960, at *7–8 (citing, inter alia, Manno, supra, 289 F.R.D. at 682; Page v. Regions Bank, 917 F.Supp.2d 1214, 1217 (N.D.Ala.2012); Harris v. World Fin. Network Nat’l Bank, 867 F.Supp.2d 888, 894 (E.D.Mich.2012); Swope v. Credit Mgmt., L.P., No. 4:12CV832, 2013 WL 607830, at *3 (E.D.Mo. Feb. 19, 2013)). ¶   Defendant cites Fini v. DISH Network, L.L.C., 955 F.Supp.2d 1288 (M.D.Fla.2013) for the alternative proposition that only the actual recipient of the call—on a cell phone that he regularly uses and carries—has standing to sue. We do not read Fini so narrowly. There, plaintiff’s husband was listed as the “service subscriber” for her cell phone and thus technically responsible for their “joint” bill. Id. at 1290. There as well, the same defendant, DISH, indeed, the same counsel, Messrs. Zalud and Kern, argued that the “called party” should be limited to the “subscriber” of the cell phone service, meaning (as is the very case here) the one who contracted to pay the bills, thus excluding Mrs. Fini. Not wanting to limit so absolutely those who could sue, in light of the “plethora of contractual arrangements available to wireless customers,” Judge Conway opined: “Without expressing an opinion as to whether it is actually necessary to be a ‘subscriber’ to have standing under the TCPA, this Court finds that Plaintiff has standing because she is the regular user and carrier of the phone at issue in this case.” Id. at 1296. We agree with the Moore court that Fini “stands only for the proposition that a regular user and carrier of a cell phone who is not the subscriber has standing under the TCPA.” Moore, 2014 WL 5305960, at *10 (emphasis added). Here Plaintiff is indisputably the “subscriber” and, as in Moore, we need not opine as to “which, if any, other types of relationships to a cell phone give rise to standing under the TCPA.” See id. at *7 (emphasis added). That Dr. Maraan did not answer the calls does not rob him of standing in this Court’s view. He subscribed to a cellular telephone service on behalf of himself and other family members, a fairly typical and provider-encouraged scenario, and that status alone permits him to bring suit under the TCPA. See Breslow v. Wells Fargo Bank, N.A., 755 F.3d 1265 (11th Cir.2014) (subscriber brings suit individually and as next friend to her minor son, the exclusive user of the cell phone that received the calls).