District Court (Fla.) Says TCPA Plaintiff Need Not Plead that She Was Charged for the Call

In Gesten v. Stewart Law Group, LLC, — F.Supp.3d —-, 2014 WL 7243330 (S.D.Fla. 2014), Judge Cohn denied a TCPA defendant’s Motion to Dismiss the Plaintiff’s complaint, rejecting the argument that the Plaintiff must plead that she was charged for the call.

Defendant first argues that Plaintiff lacks standing to sue under the TCPA because Plaintiff has not alleged that she was charged for the call. [DE 14 at 3, 5.] But Plaintiff need not make such an allegation. This Court has previously determined, in a well-researched and well-reasoned opinion by District Judge Robert N. Scola, that “the TCPA does not require the plaintiff to be ‘charged for’ the calls in order to have standing to sue.” Manno v. Healthcare Revenue Recovery Group, LLC, 289 F.R.D. 674, 683 (S.D.Fla.2013). In reaching this conclusion, Judge Scola relied upon a Northern District of Alabama case, Page v. Regions Bank, 917 F.Supp.2d 1214 (N.D.Ala.2012), that conducted a thorough analysis of the TCPA’s text. The Page court concluded that, under the “doctrine of the last antecedent,” the phrase “ ‘for which the called party is charged for the call’ modifies only ‘any service’ not the preceding phrases in the statute, making the phrase ‘any services for which the called party is charged’ a separate type of qualifying service.” Id. at 1220. Accordingly, the TCPA covers calls to a cellular telephone service regardless of whether anyone is “charged for the call” within the meaning of TCPA § 227(b)(1)(A)(iii). See also Osorio, 746 F.3d at 1258 (holding that a TCPA plaintiff “is not required to prove that he was charged individually for each of the autodialed calls”). Similarly—and again relying on Page—Judge Scola dismissed Defendant’s second argument that Plaintiff must qualify as a “called party” to have standing. “Standing is not expressly limited to the ‘called party.’ “ Manno, 289 F.R.D. at 682. As the Page court observed, the TCPA “does not use the term ‘called party’ when defining who may assert a TCPA claim.” 917 F.Supp.2d at 1217. “To the contrary, the TCPA grants a private right of action to any ‘person or entity.’ “ Id. (citing 47 U.S.C. § 227(b)(3)). Instead, the TCPA uses the term “called party” when setting forth “an exception to liability, stating that a person does not violate the TCPA if the call is ‘made for emergency purposes or made with the prior express consent of the called party.’ “ Id. at 1216–17. The Motion does not take issue with Plaintiffs allegations concerning consent to the offending phone calls. Neither Breslow v. Wells Fargo Bank, N.A. nor Osorio v. State Farm Bank, F.S.B.—both Eleventh Circuit cases decided after Manno and Page—cause the Court to question the above analysis. Both Breslow and Osorio concern the meaning of the term “called party” within TCPA § 227(b)(1)(A)(iii). Breslow, 755 F.3d at 1267; Osorio, 746 F.3d at 1250–51. As Manno and Page observe, Plaintiff need not be a “called party” to have standing. Moreover, the Court agrees with Plaintiff that Defendant takes a too-narrow view of Osorio and Breslow. While these cases held that a current telephone subscriber qualifies as a “called party” to the exclusion of a prior subscriber who had authorized the call, these cases did not address whether the term also covers a cell phone’s current primary user.