In D.G. ex rel. Tang v. William W. Siegel & Associates, Attorneys at Law, LLC, — F.Supp.2d —-, 2011 WL 2356390 (N.D.Ill. 2011), Judge Kocoras rejected defendant’s claim that Plaintiff lacked TCPA standing. Plaintiff Tang was the regular user and carrier of a cellular phone with an assigned number of XXX–XXX–3757. From August 5, 2010, to December 14, 2010, Siegel called Tang’s cellular phone nine times. Siegel, using a predictive dialer with text-to-speech customization, leaving a prerecorded message on the voice mail of Plaintiff’s cell phone for Defendant’s debtor, one “Nelson”. Tang sued under the TCPA and FDCPA; defendant argued that Tang lacked standing because Tang was not the intended recipient of the call. Judge Kocoras disagreed, explaining:
Siegel argues that Plaintiff lacks standing to assert a TCPA claim because Plaintiff is the unintended recipient of Siegel’s calls and, thus, not the “called party” under the TCPA. ¶ . . . Siegel asserts that Plaintiff does not have standing unless he is the “called party,” which Siegel defines as the party it intended to call. Siegel suggests that, in this case, Kimberly Nelson is the “called party.” The TCPA uses the term “called party” when setting forth an exception and states that a person does not violate the TCPA if the call is made with the “prior express consent of the called party.” 47 U.S.C. § 227(b)(1)(A). Significantly, the term “called party” is only used in the exception to the statute and does not define who may sue under the statute. Thus, Plaintiff need not be a “called party” to assert a TCPA claim. Further, according to the allegations of the Amended Complaint, Siegel did not have Plaintiff’s prior express consent, so this Court need not determine whether the exception applies and Siegel is a “called party” under the TCPA. ¶ Even if the TCPA only affords a right of relief to the “called party,” this Court finds that Plaintiff was the called party because Siegel intended to call Plaintiff’s cellular telephone number and Plaintiff is the regular user and carrier of the phone. Siegel relies on two, non-binding cases in arguing that Plaintiff, the unintended recipient of the calls, is not the “called party” under the TCPA: Leyse v. Bank of Am., Nat’l Ass’n, 2010 WL 2382400 (S.D.N.Y. June 14, 2010) and Cellco P’ship v. Dealers Warranty, LLC, 2010 WL 3946713 (D.N.J. Oct. 5, 2010). Neither case supports Siegel’s argument. In Leyse, the defendant called an individual on their residential line and the individual’s roommate answered. 2010 WL 2382400, at *2. The Leyse court held that the roommate, who sued the defendant, was not the called party and lacked standing. Id. at *4. The court reasoned that the roommate was an unintended and incidental recipient of the call since the defendant called the number actually associated with the individual it attempted to contact and the roommate merely happened to answer. Id. Aside from the fact that Leyse dealt with a different TCPA provision and evaluated the plaintiff’s Article III standing, Leyse is distinguishable because Siegel did not call a number actually associated with Kimberly Nelson, the individual it was attempting to contact, but instead called Plaintiff’s cellular number. Thus, unlike the roommate in Leyse, Plaintiff was not the unintended and incidental recipient of Siegel’s calls. In Cellco, the other case cited by Siegel, the defendant placed unsolicited telemarketing calls to plaintiffs’ subscribers. 2010 WL 3946713, at * 1. An issue of statutory standing arose because the plaintiffs were telecommunications vendors and not the subscribers who actually received the phone calls. Id. at *7. Remarkably different from the plaintiffs in Cellco who did not receive the calls, here, Plaintiff actually received the calls from Siegel. Because Siegel intended to call Plaintiff’s cellular phone number, Plaintiff received the calls, and Plaintiff is the regular user and carrier of the phone, Plaintiff qualifies as a “called party” under the TCPA.