In Kaplinsky v. Robert Wood Johnson University Hospital, 2016 WL 885049, at *2-3 (D.N.J., 2016), Judge Thompson found that a TCPA Plaintiff need plead that he was charged for the call in order to state a claim.
But as to Plaintiff’s second argument, the Court finds that it is necessary to grant reconsideration on this point. Whether a plaintiff must allege that he was charged for a call to his cellular phone to state a claim under the TCPA would appear to be an issue of first impression in this Court. However, the Court found Plaintiff’s citations to other district court opinions instructive. As Plaintiff points out, courts facing this argument “have routinely held that a plaintiff need not prove that he was charged for a cellular phone call to state a claim under the TCPA.” Castro v. Green Tree Servicing LLC, 959 F. Supp. 2d 698, 721 (S.D.N.Y. 2013) (citing Lynn v. Monarch Recovery Mgmt., Inc., No. 11-2824, 953 F.Supp.2d 612, 625 n.37 (D. Md. 2013); Manfred v. Bennett Law, PLLC, No. 12-61548, 2012 WL 6102071, at *2 (S.D. Fla. Dec. 7, 2012) (“[T]he Court notes that the language of the statute makes it apparent that Plaintiff need not allege that he was charged for the call if he has alleged that the call was made to his cell phone.”); Gutierrez v. Barclays Grp., No. 10-1012, 2011 WL 579238, at *5-*6 (S.D. Cal. Feb. 9, 2011) (holding that plaintiffs need not show that they were charged for the calls or texts to their cell phones to prevail under the TCPA); Lozano v. Twentieth Century Fox Film Corp., 702 F. Supp. 2d 999, 1009 (N.D. Ill. 2010) (“Due to the occurrence of two disjunctive prepositions in the relevant portion of § 227, the phrase ‘for which the called party is charged for the call’ only modifies ‘any service.’ ”) (citation omitted)); see also Abella v. Student Aid Ctr., Inc., No. 15-3067, 2015 WL 6599747, at *2 (E.D. Pa. Oct. 30, 2015). As these courts recognize, principles of statutory construction support the conclusion that a plaintiff need not state that he was charged for calls to his cellular phone. The relevant statutory language states that subject to narrow exceptions, it is unlawful for any person to make certain calls “to any telephone number assigned to a paging service, cellular telephone service, specialized mobile radio service, or other radio common carrier service, or any service for which the called party is charged for the call.” 47 U.S.C. § 227(b)(1)(A)(iii) (emphasis added). In a claim involving a cellular telephone, such as this one, to require a plaintiff to plead that he was charged for the call would require that the phrase “for which the called party is charged for the call” be interpreted to modify the entire subsection, and not just the phrase “or any service.” Given the many similar cases from other districts, the Court agrees that a plaintiff need not state that he was charged for a call made to a cellular phone to state a claim under the TCPA.