District Court (Fla.) Says Breslow/Osorio’s TCPA Holding that “Called Party” Means “Subscriber” Actually Meant “Regular User”

In Meyer v. Diversified Consultants, Inc., 2014 WL 5471114 (M.D.Fla. 2014), Judge Toomey found that a “regular user” was the “called party” under Osorio/Breslow.

In the Motion to Dismiss, Defendant argues that “[b]ecause plaintiff was not the subscriber of the telephone, she was not the ‘called party’ under the TCPA and Count I of the class action complaint must be dismissed with prejudice.” (Doc 15. at 2.) Further, Defendant argues that because “it is only the ‘called party’ that is able to assert a claim for alleged violations of the TCPA,” Plaintiff lacks standing to bring her claim. ( Id. at 5.) Defendant correctly notes that the Eleventh Circuit recently held that “ ‘called party,’ for purposes of § 227(b)(1)(A)(iii) [of the TCPA], means the subscriber of the cell phone service.” See Breslow v. Wells Fargo Bank, N.A., 755 F.3d 1265, 1267 (11th Cir.2014) (citing Osorio v. State Farm Bank, F.S.V., 746 F.3d 1242, 1251 (11th Cir.2014)). However, Defendant’s contention that “[t]he Eleventh Circuit has unequivocally spoken … and concluded the telephone subscriber is the only person that has standing to bring a TCPA claim” is not clearly meritorious. (Doc. 27 at 2.) The issue in the Eleventh Circuit cases relied on by Defendant was not standing, but rather consent. See Osorio, 746 F.3d at 1242; Breslow, 755 F.3d at 1265. Compare 47 U.S.C. § 227(b)(1) (“called party”), with 47 U.S.C. § 227(b)(3) (“person or entity”). Moreover, several district courts within the Eleventh Circuit have construed the statute to confer broader standing than that argued by Defendant. See Page v. Regions Bank, 917 F.Supp.2d 1214, 1219 (N.D.Ala.2012) (“[A] plaintiff need not be a ‘called party’ to assert a TCPA claim.”); Manno v. Healthcare Revenue Recovery Grp., LLC, 289 F.R.D. 674, 683 (S.D.Fla.2013) ( “[T]he standing provision of the TCPA is quite broad in that any ‘person or entity’ injured by a violation of the statue may seek redress; standing is not expressly limited to the ‘called party.’ ”). Because Plaintiff has not cited any binding Eleventh Circuit authority directly to the contrary, the Motion to Dismiss is not clearly meritorious.FN2 [FN2. Moreover, there is an issue whether the regular user and carrier of a phone can be considered its “subscriber,” at least for purposes of standing. See, e.g., Fini v. Dish Network L.L.C., 955 F.Supp.2d 1288, 1296 (M.D.Fla.2013) (“[T]his Court finds that Plaintiff has standing because she is the regular user and carrier of the phone at issue in this case.”). The Court expresses no opinion on the effect of Osorio and Breslow on the resolution of this issue.]