iIn 2014, the Federal Communications Commission (FCC) approved an exemption from the Telephone Consumer Protection Act’s (TCPA) prior consent requirement for text alerts to overnight package delivery recipients if seven conditions were met. The first of those conditions was that the “notification must be sent, if at all, only to the telephone number for the package recipient….” (emphasis supplied). But what if the owner of that number turned out not to be “the package recipient?” Is the condition met or not?
This was the outcome-determinative question in Pepicelli v. FedEx Corporate Services, 2020 U.S. Dist. LEXIS 80801, Case No. 18-cv-03653-PWG, United States District Court of Maryland, May 6, 2020. Plaintiff received a number of package notification texts for which he “was not the package recipient” and brought a class action under the TCPA, asserting that the first and foremost condition under the FCC exemption had not been satisfied. He claimed that “robocalls to consumers are not exempted from TCPA liability if they were sent to someone other than the actual package recipient’s cellphone number, regardless whether the number was supplied by the shipper.” Therefore, despite the defendant meeting all other exemption criteria, it could not get the “benefit” of the FCC’s 2014 ruling.
The defendant moved for summary judgment, arguing that that “the only reasonable interpretation of the first condition is that it refers to the telephone number that was supplied by the shipper ‘for’ the package recipient, as opposed to the [actual] number ‘of’ or ‘belonging to’ the package recipient.” Indeed, this was the “only interpretation… consistent with the intention and purpose of the” exemption.
U.S. District Judge Paul Grimm, in a presumably grim result for Mr. Pepicelli, agreed with the defendant. The court held that the “first exemption condition is met if the notification is sent to the telephone number provided by the shipper for the package recipient.” The “term ‘for’ the package recipient (as opposed to ‘of’ the recipient)… is broader than a requirement that the number actually belong to the person receiving the package.” Pulling out his Merriam Webster, Judge Grimm found that “‘[f]or’ is a function word, which in this context, refers to ‘on behalf of’ or ‘in favor of’ the package recipient. See https://www.merriam-webster.com/dictionary/for.”
The court added that “the regulation does not specify the person or entity that must provide the telephone number for the package recipient. But the only reasonable interpretation of this language is that it includes the shipper of the package, as that is the person or entity that determines the method of shipping that will be used and makes the arrangements with the shipper for the delivery.” So the “common sense result is that the first condition permits the notification to be sent to the telephone number that was provided to the shipping company by the person or entity sending the package to its recipient,” even if Mr. Pepicelli was not getting any delivery.
Thus, the defendant “has a complete defense to [Mr.] Pepicelli’s claims, and it did not violate the TCPA,” and the “motion for summary judgment is granted.”
