District Court (Pa.) Says Creditor Not Vicariously Liable under TCPA for Debt Collector’s Calls to Wrong Call Recipient who Received Calls Over Google VoiP; Leaves Spokeo Issue for Another Day

In Klein v. Just Energy Group, Inc., 2016 WL 3539137, at *2 (W.D.Pa., 2016), Judge Conti granted summary judgment to an energy company who’s debt collectors placed wrong-party calls to Klein over Klein’s Google VoiP.    Because Klein’s VoIP number had been erroneously recorded as the number for P.S., Commerce Energy, Inc. d/b/a Just Energy provided Klein’s VoIP number to Collectcents for the purpose of collecting on the amount owing on the debtor’s account.  Collectcents made the debt collection calls that were related to the account of the debtor, but placing the calls to Klein’s VoIP number

Regarding Fact Nos. 45-51, he does not indicate that he adopts those facts or disputes those facts except to direct the court to section 3 of his opposition regarding his argument that the TCPA applies to calls made to his free Google voice over Internet Protocol (“VoIP”) service number ending in 0702 (“Klein’s VoIP number”) and to restate his allegation that the calls to his VoIP number were charged to him based on his assertion that they were sent from his VoIP service to the Verizon Wireless phone account for which he pays.   For purposes of the TCPA, it does not matter that P.S. was the intended recipient of the calls. In Leyse, the Court of Appeals for the Third Circuit held that the individual who answers the robocall  has standing to sue. 804 F.3d at 327. The aggrieved persons under the TCPA’s provisions include the actual recipient of the telephone call, 804 F.3d at 325-326, because “[i]t is the actual recipient, intended or not, who suffers the nuisance and invasion of privacy.” Leyse, 804 F.3d at 326.   VoIP service, like the service used by Klein, is provided over broadband connection, cable modem, fiber to the premises (FTTP), digital subscriber line (DSL) or other wireline, and fixed wireless or other connections. FCC Releases New Local Telephone Competition Data: Third Collection to Comprehensively Include Interconnected VoIP, 2011 WL 97677, at *1-2 (FCC Jan. 11, 2011). VoIP service is becoming more common. Id.  “Interconnected VoIP service represents an important and rapidly growing part of the U.S. voice service market. [It] enables voice communications over a broadband connection and allows users both to receive calls from, and place calls to, the public switched telephone network, like traditional phone service. Providers of the service include companies like Vonage as well as cable and telephone companies that own their own networks.”  Id.  There is no dispute that the challenged calls were made to Klein’s VoIP number. The Just Energy Defendants, however, dispute that any of them can be held liable for the calls. . . . In sum, the evidence adduced in this case is not sufficient to support a finding by a reasonable jury that Collectcents was acting as an agent (whether under actual authority, apparent authority or ratification theories) for any of the Just Energy Defendants in making any of the calls mistakenly placed to Klein’s VoIP number instead of the number of P.S. The Just Energy Defendants are entitled to summary judgment in their favor on Klein’s claim that those defendants are vicariously liability under the TCPA. Because of the court’s determination that Klein failed to adduce sufficient evidence connecting the Just Energy Defendants to the challenged calls, the court need not resolve and leaves for another day whether the calls to Klein’s VoIP number are subject to the TCPA under the charged call provision of 47 U.S.C. § 227(b)(1)(A)(iii) because Klein’s particular VoIP service from Google is free.