Calls to Landlines May Still Be Calls to Cell Phones Under the TCPA?: First Circuit Court of Appeal Makes TCPA Compliance Impossible with Stunning New Ruling
Well folks, compliance with the Telephone Consumer Protection Act (“TCPA”) just became even more difficult.
There is little unshakable bedrock in TCPAWorld but we had this: if a number is listed as a wireline by Neustar it is not a number “assigned to a wireless service” for purposes of the TCPA’s automated telephone dialing system restrictions. Indeed, virtually every reputable business runs a regular scrub against Neustar to distinguish cell phones—which are treated with greater protection under the TCPA and related regulations—from landlines—which are subject to less protection.
While some issues related to number portability and assignment have arisen in TCPAWorld—for instance calls made to wirelines and forwarded to cell phones and VOIP services using wirelines—the base rule has always been that calls made to wireline numbers are not subject to the TCPA’s heightened restrictions just because the Plaintiff made use of a service that resulted in a call being received on a cellular handset. (The rather thorny exception to this rule being where the claimant was charged per call for the service he or she was utilizing.)
With the advent of multi-channel communications providers, however, distinguishing calls made to wireless and wireline numbers just became more difficult—perhaps impossible—as demonstrated by the First Circuit’s new ruling in Breda v. Cellco Partnership, LLC, Nos. 17-2196, 18-1010 (1st Cir. Aug. 15, 2019). The decision can be found here: Breda
In Breda the Plaintiff contended she received pre-recorded calls on her cell phone from Verizon Wireless intended for somebody else. Plaintiff’s phone service was something called Republic Wireless. Although the phone service has the word “Wireless” in the name, Republic apparently did not actually serve as a wireless carrier. Instead, it relied on something called Bandwidth.com to list Plaintiff’s ported (previously) cellular number. One little problem—Bandwidth.com, apparently, only has the ability to provide numbers classified as “wireline” numbers, and Breda’s telephone number was listed by Bandwidth as a “wireline,” rather than “wireless,” number on Neustar.
Despite the fact that Republic somehow ported Breda’s cellular number to a service that only provides wireline numbers, Republic turned around and connected many (but not all) calls to Breda’s cell phone using cellular networks offered by other companies. Notably it is not unusual for third-party wireless providers to rent traffic from carriers to connect calls using their networks (these services are called mobile virtual network operators—and there are a bunch of them) but it appears to be highly unusual—and unprecedented in the case law—for such a MVNO to route calls over third-party cellular networks to a wireline number. But that is what happened in Breda.
Making matters even more interesting, Republic actually prefers to connect calls via VOIP rather than using its borrowed cellular network traffic. So Breda did not even receive all of the calls at issue via the cellular network—anytime Breda was connected to WIFI the calls were made via VOIP and not using the MVNO cellular network.
And here’s where things get really delicious. Verizon just happened to be Plaintiff’s previous cellular service provider. So Plaintiff ported her number from Verizon, to Republic who, in turn, ported it to Bandwidth.com as a wireline number. Verizon then placed calls to the number in an effort to reach a different customer who had, apparently, inaccurately supplied the number as an alternate contact number for his account to begin with.
Well faced with this cascade of telecommunication wonders, the district court held, readily-enough, that the TCPA’s consent requirements for informational calls do not apply to Verizon’s calls because it was placing calls to a landline and not a cell phone number. Since Plaintiff did not pay for each call, the TCPA’s heightened consent restrictions did not apply to these landline calls and the district court granted summary judgment to Verizon.
Focusing on the method of transmission of the call—rather than on the assignment of the number to a wireless service—the First Circuit reversed in Breda. In its view the calls were made to a cellular phone because cellular service was used to connect the calls. And Neustar listing the number as a wireline number does not change the result.
But we’ll get to that in a minute. First, we have to address Verizon’s arbitration motion. Yes, it sought to compel arbitration using its old agreement with the customer for the very phone number it allegedly called without consent. How fun.
While the argument in favor of arbitration feels weak at first blush—after all the calls were made after the contract with Verizon terminated and regarding an entirely different account—the case for arbitration was strengthened by a bizarre argument apparently (but not really) made by the Plaintiff in opposing certification. I’ll try to explain. In Verizon’s view, Plaintiff’s core argument was, in essence, that her phone was “assigned to a wireless carrier” under the TCPA because it was the same phone number she had used while with Verizon. That argument makes little sense—just because the number was previously assigned to a wireless carrier is non-probative on the issue of whether the number is currently assigned to such a carrier— but Verizon took the argument at face value and contended that her claim necessarily “arose out of” Verizon’s wireless services agreement and was, hence, subject to arbitration.
Verizon would probably have been right about arbitration if it had been right about Plaintiff’s argument in the first place but, apparently, it wasn’t because words are tricky. The Appellate Court was unpersuaded that Plaintiff had ever made such a senseless argument to begin with—in the Court’s view the Plaintiff was just using some careless language in framing an otherwise proper argument. In its words: “we recognize that a few of Breda’s statements in her opposition to summary judgment could be read in isolation as essentially arguing that her number was assigned to a cellular telephone service at the time of VZW’s calls because she had the same number when she was a customer of VZW’s cellular telephone service… But, read in context, it is clear that Breda has never made this argument.” Oh ok. So the First Circuit Court of Appeal panel re-packaged the Plaintiff’s brief to find that she never made an argument that the language of her brief suggests she made so as to avoid compelling arbitration.
Talk about a bail out.
But let’s leave that aside and get back to the good stuff—how a wireline number can also somehow be assigned to a wireless service for TCPA purposes.
First, in the appellate court’s view the district court and Verizon had been too focused on VOIP cases and distinguishing VOIP from cellular service. In the appellate court’s view the VOIP issue was a red herring because cellular networks were also used to connect calls to the Plaintiff’s cell phone. So it rejected Verizon’s (apparent) argument that the use of VOIP by Republic necessarily thwarted a finding that cellular service was also used. In the appellate court’s view a number does not have to be assigned “exclusively” to a cellular telephone service to be subject to the TCPA’s heightened restrictions—any use of cellular service will do. This is so because the TCPA is a consumer protection statute so the statute needs to be read broadly and nonsensically. (Ok I added in that last part.)
But here’s where things get really interesting. After batting around whether Republic’s offerings even qualify as a “cellular service” the Court addresses the key statutory phrase: “assigned to.” Remember—the TCPA’s special restrictions only apply where a number is actually assigned to a cellular service. Here, Breda’s number was classified as a wireline number by the very service offering the number—so no possible way it was “assigned” to a cellular service, right?
In the Court’s view, the phrase “assigned to” does not have “any specific, technical meaning under the TCPA…” Wow. So, playing this out, just because a number is “classified” as a wireline number by the company providing the number—and listed as a wireline number by Neustar (the vendor responsible for keeping track of this stuff)—doesn’t mean that the number isn’t actually “assigned” to cellular service after all. As the Court puts it, “the pertinent question is not how Bandwidth, or any entity, ‘classifies’ Breda’s number, but whether her telephone number is in fact ‘being used in connection with’ a ‘cellular telephone service.’” So, the Breda court rules:
to determine whether a telephone number is ‘assigned to a . . . cellular telephone service,’ we need only consider whether the number is being used in connection with such service.
Notice, the court’s literal holding is that the phrase “assigned to” has no meaning in the TCPA. Yep. The words of a statute really are meaningless these days. The question is not how the number is assigned, classified, packaged, sold, or displayed by Neustar, therefore. The question is solely whether it is being used in connection with a cellular service. And to be clear—the court was fully aware of the impact of its ruling on industry-participants relying on Neustar. In its view:
the fact that Neustar is a tool that can assist compliance with the TCPA does not mean that Neustar listings are dispositive as to whether a telephone number is ‘assigned to a . . . cellular telephone service’ under the TCPA.
So there you have it friends. Just when you thought TCPA compliance couldn’t get any tougher—it becomes impossible. Without Neustar serving as a reliable guide for callers seeking to avoid unlawful calls to cell phones, there is no guide at all– leaving callers with no way to know whether a landline might actually be receiving calls via a cellular conduit.
And this is the key takeaway here folks. Don’t get bogged down with VOIP or the “hybrid” nature of the service offered by Republic. Ultimately that doesn’t matter. The key component of Breda is that if calls are connected to a number “classified” as a wireline number via a cellular service that number is “assigned to” a cellular service for TCPA purposes. That is just a shocking result that essentially obliterates the distinction between calls to wireless and wireline numbers that Congress and the FCC have carefully preserved for nearly three decades. Now callers must now treat all calls as if they are being made to cell phones or risk TCPA exposure under Breda.
And making matters far worse—courts following Breda will likely give the ruling retroactive impact. (The normal rule is that court decisions clarifying existing law are retroactive in application.) So not only must callers now abate calling numbers that appear to be wireline numbers to avoid future liability, they need to borrow the TCPAWorld.com time machine to go back in time and begin preventing those calls starting four years ago.
This is just brutal. I wish I had better news for you TCPAWorld. Happy to discuss.