Third Circuit Rules “Regular Users” of Residential Telephone Lines Can Sue under the TCPA

The Third Circuit Court of Appeals recently decided that a “regular user” of a residential telephone has standing to sue under the Telephone Consumer Protection Act (“TCPA”).  In Leyse v. Bank of America National Association, the plaintiff answered a prerecorded telemarketing call from Bank of America on a residential landline shared with his roommate.  The roommate was the telephone number subscriber and the intended recipient of the call. The Third Circuit reversed the lower court’s dismissal of the case disagreeing with the lower court judge’s finding that only the “intended recipient” of a robocall is a “called party” for purposes of the law.  Judge Fuentes of the Third Circuit wrote, “If the caller intended to call one party without its consent but mistakenly called another, neither the actual recipient nor the (uninjured) intended recipient could sue, even if the calls continued indefinitely.  We doubt Congress meant to leave the actual recipient with no recourse against even the most unrelenting caller.”

The TCPA restricts telephone solicitations and the use of telephone equipment.  The TCPA makes it unlawful “to initiate any telephone call to any residential telephone line using artificial or prerecorded voice to deliver a message without the prior express consent of the called party” except in emergencies or circumstances exempted by the Federal Communications Commission.

The plaintiff in Leyse still has the burden of proof to demonstrate that he answered the telephone when the robocall was received.  This ruling could greatly expand the scope of potential liability for errant calls.

For more information on this topic, contact Stephanie A. Strickler at 312-334-3465 or sstrickler@messerstrickler.com.