Appeals Court Overturns Trial Court Ruling that Plaintiff Must Be “Charged” for Calls

Telephone Consumer Protection Act (“TCPA”) class actions are out of control, and many legitimate businesses are facing multi-million dollar lawsuits based on bizarre Federal Communications Commission (“FCC”) rulings which have no relation at all to any consumer harm.

Think of this: a consumer who is called manually by a human dialing a number can allege that the call was placed using equipment which could have been, but was not, predictively dialed.  There is no harm nor allegation of harm, but statutory damages can be $500 or more per call.

Some judges are starting to press back against this ridiculousness.

For example, a New Jersey judge recently dismissed a TCPA claim brought by an individual who received messages on his cell phone number from a hospital. 

In Kaplinsky v. Robert Wood Johnson Univ. Hosp., 2016 U.S. Dist. LEXIS 15951 (D.N.J. Feb. 10, 2016), the plaintiff alleged these messages violated the TCPA which provides that:

It shall be unlawful for any person within the United States, or any person outside the United States if the recipient is within the United States to make any call (other than a call made for emergency purposes or made 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…

47 U.S.C. § 227(b)(1)(iii) (emphasis added).

The judge disagreed, holding that “charged for the call” applies to each of the types of telephone numbers listed in the statute, and since the plaintiff did not allege he was charged for each received call, dismissed the case.

This is a totally plausible reading of the statute: a noun can be modified by a word or phrase placed after that noun, and more importantly, one that would deny huge windfalls to class action attorneys whose clients are not harmed in the least by many of the calls they allege are illegal.

However, on March 8, 2016, the appellate court overturned this trial court ruling holding that “for which the called party is charged for the call” applies only to “or any service”, and not the earlier part of the statute.  Kaplinsky v. Robert Wood Johnson Univ. Hosp., 2016 U.S. Dist. LEXIS 29575 (D.N.J. Mar. 8, 2016).  

Sadly, this is a reversal of a defense victory in the TCPA area, where plaintiffs’ attorneys are empowered by the chance massive economic gain with little risk, and almost no consumer harm.