The First Circuit Court of Appeals has waded into technical waters and determined that calls made to individuals who have smartphones that offer a hybrid of Voiceover Internet Protocol service and cellular service are subject to the Telephone Consumer Protection Act, and overturned a lower court’s summary judgment ruling in favor of the defendant.
A copy of the ruling in Breda v. Cellco Partnership d/b/a Verizon Wireless can be accessed by clicking here.
The plaintiff obtained a cell phone through the defendant, but switched carriers. Her new carrier offered a hybrid VoIP/cellular plan, which routed the call via a VoIP network when the phone was connected to a Wi-Fi network, or via a cellular network when the phone was not connected to Wi-Fi. The defendant placed calls to the plaintiff’s phone after it was ported to the new carrier, seeking to get in touch with someone else. The plaintiff spoke to a representative of the defendant and said she was receiving the calls in error, asked for the calls to stop, and was told they would. They did not.
The plaintiff filed a class-action lawsuit, accusing the defendant of violating the TCPA by making calls to her cell phone without her consent. The defendant, among its arguments, said that the phone was not a true cellular phone because it offered the VoIP service, and was granted summary judgment.
However, the hybrid nature of the plaintiff’s phone service “is meaningfully distinguishable from exclusive VoIP service and constitutes ‘cellular telephone service’ within the meaning of the TCPA,” the First Circuit ruled.
The defendant attempted to argue that the relevant section of the TCPA — 227(b)(1)(A)(iii) — refers to cellular phone service so the plaintiff’s service does not fall under the TCPA. However, the Court, applying a “broad” reading of the TCPA, had some harsh words for the defendant.
“Further, as a matter of common sense, we see no principled reason for treating a service that involves the routing of calls over a cellular network the same as a service that exclusively uses VoIP technology for purposes of determining liability under the ‘cellular telephone service’ provision of the TCPA,” it wrote.