In Ghawi v. Law Offices Howard Lee Schiff, P.C., 2015 WL 6958010, at *3-5 (D.Conn., 2015), Judge Arterton denied summary judgment to a TCPA defendant, rejecting the argument that the calls were not to a cellular telephone so long as the debtor told the caller that the calls were routed to a a cell phone.
All Defendants argue that Mr. Ghawi’s claims regarding autodialer/prerecorded calls to his cell phone should be dismissed because the calls were not in fact to a cell phone. TCPA § 227(b)(1)(A)(iii) prohibits “any person within the United States” from making “any call (other than … with the prior express consent of the called party) using any automatic telephone dialing system or an artificial or prerecorded voice … 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.” Mr. Ghawi’s 5122 number is a Voice over Internet Protocol (VoIP) line provided by Optimum. (See Pl.’s Responses to Discovery Requests, Ex. 5 to HLS’s Mem. Supp. at 84.) VoIP “is a technology that allows [users] to make voice calls using a broadband Internet connection instead of a regular (or analog) phone line. [W]hile some VoIP services only work over [a] computer or a special VoIP phone, other services allow [users] to use a traditional phone connected to a VoIP adapter.” FCC, Voice Over Internet Protocol (VoIP), https://www.fcc.gov/enycolopedia/voice-over-internet-protocol-voip (last visited August 6, 2015). “VoIP services convert [the user’s] voice into a digital signal that travels over the Internet. If [the user is] calling a regular phone number, the signal is converted to a regular telephone signal before it reaches the destination. VoIP can allow [users] to make a call directly from a computer, a special VoIP phone, or a traditional phone connected to a special adapter.” Id. Calls to Mr. Ghawi’s 5122 number “simultaneously ring up to three additional phone lines and the call [is] connected to whichever phone answers first.” (Optimum Voice, Find Me Feature, Ex. 4 to HLS’s Mem. Supp. at 58.) Mr. Ghawi explained that the 5122 line is his “main line which [he] give[s] out as [his] cell number [because] when it rings … so do all [of his] mobile phones (which have changed over the years). This reduces the inconvenience of friends, family, clients, and business colleagues etc, to maintain several numbers.” (Pl.’s Responses to Discovery Requests, Ex. 4 to HLS’s Mem. Supp. at 45.) Mr. Ghawi appears to raise two alternative arguments with respect to TCPA § 227(b)(1)(A)(iii): (1) that calls to his 5122 number violate § 227(b)’s restriction on calls to cell phone because the 5122 number connects to his cell phone, and he notified the HLS Defendants of this fact (see Ghawi Aff. [Doc. # 112] ¶¶ 6, 19, 20); and (2) that calls to his 5122 number violate § 227(b)’s restriction on calls to services for which the called party is charged for the call because the 5122 number, “which is tied to [his] cell phone is paid for by airtime” and he incurs an expense “in using the number for inbound calls when it rings to [his] cell phone” (Pl.’s Opp’n Mot. to Dismiss [Doc. # 61] at 5). Citibank asserts that Mr. Ghawi “has not produced any evidence to suggest that the 5122 Number is assigned to any of the types of services specifically identified in Section 227(b)(1)(A)(iii), nor can Ghawi provide evidence establishing that he is charged on a per call basis as distinguished from a monthly flat fee.”3 (Citibank’s Mem. Supp. Mot. for Summ. J. [Doc. # 154-1] at 4 (emphasis added).) The HLS Defendants contend, for their part, that they “did not call Mr. Ghawi on his cell phone” (HLS’s Suppl. Responses to Discovery Requests, Ex. DD to Pl.’s Counter Aff. Rebutting Moylan Aff. [Doc. # 110] at 6), but that “on June 21, 2012 Mr. Ghawi told [them] that by calling his home phone number, the call would be transferred to his cell phone, and he consented to the calls to his home phone number for this purpose…. Mr. Ghawi never indicated or implied that any calls that he was having transferred from his non-cell phone line resulted in any additional charges by his telecommunications provider…. However, no dialer calls were made to Mr. Ghawi after June 21, 2012” (HLS’s Responses to Discovery Requests, Ex. O to Pl.’s Mem. Supp. at 3). Therefore, the HLS Defendants conclude, “it was not the Schiff defendants who called plaintiff’s cell phone, but Mr. Ghawi who forwarded the calls, and at his direction, calls to his land line were sent to his cell phone for his convenience.” (HLS’s Mem. Supp. at 23.) As a preliminary matter, Mr. Ghawi has produced no evidence that he was charged for calls to his 5122 line, so his claim can only survive if the calls to the 5122 line are deemed calls to a cell phone. There is little caselaw on how VoIP services fit into § 227(b), but in light of the purpose of the TCPA—“to prohibit the use of [autodialers/prerecorded calls] to communicate with others by telephone in a manner that would be an invasion of privacy,” Satterfield v. Simon & Schuster, Inc., 569 F.3d 946, 954 (9th Cir. 2009)—there is no apparent conceivable reason on the record why the use of a VoIP number to connect to a cell phone should be treated differently from a direct call to a cell phone, at least where, as here, the caller informs the debt collector that the number connects to a cell phone. Because there remain disputed questions of material fact as to whether and when Mr. Ghawi informed the HLS Defendants that his 5122 number connected to a cell phone and whether and when Mr. Ghawi consented to autodialer/prerecorded calls to his 5122 number, summary judgment is not appropriate with respect to HLS’s calls. Summary judgment is nonetheless warranted with respect to Citibank’s calls to Mr. Ghawi because Mr. Ghawi has not alleged or demonstrated that he ever informed Citibank, as opposed to the HLS Defendants, that calls to the 5122 number went to his cell phone. Citibank’s motion for summary judgment is, however, denied as to its liability for the HLS Defendants’ calls to Mr. Ghawi. See In the Matter of Rules and Regulations Implementing the TCPA, 23 FCC Rcd. 559, 565, ¶ 10 (Jan. 4, 2008) (“[A] creditor on whose behalf an autodialed or prerecorded message call is made to a wireless number bears the responsibility for any violation of the Commission’s rules. Calls placed by a third party collector on behalf of that creditor are treated as if the creditor itself placed the call.”).