Roommate of Intended Call Recipient May Sue Under TCPA, Says Third Circuit

Despite verifying telephone ownership, checking for reassigned numbers, and obtaining the prior express consent, businesses may still face liability under the Telephone Consumer Protection Act (“TCPA”) for prerecorded calls if a regular user of a number answers the phone, according to a case in the Third Circuit.

In Leyse v. Bank of America, Leyse filed a lawsuit against Bank of America after he allegedly answered a call intended for his roommate.  It was undisputed that his roommate was the telephone subscriber and intended recipient of the call, as the number was associated with her name and the telemarketing company’s records. 2015 U.S. App. LEXIS 17840, *2 (3d Cir. 2015).

Minus a few exceptions, the TCPA prohibits prerecorded calls to residential lines without the prior express written consent of the “called party.”  47 C.F.R. § 64.1200(a)(3).  The district court held that because Leyse was not the intended recipient of the call, he was not the “called party” as interpreted by the TCPA and could not bring the lawsuit.  Leyse at *18.

However, Leyse appealed and argued that the TCPA's private cause of action language permits any "person or entity" to file a lawsuit and not just the intended recipient. See 47 U.S.C. § 227(b)(3). The Third Circuit agreed with Leyse and held that the TCPA's interest in privacy protections extend beyond the intended recipients:

It is the actual recipient, intended or not, who suffers the nuisance and invasion of privacy. This does not mean that all those within earshot of an unwanted robocall are entitled to make a federal case [and] … a mere houseguest or visitor who picks up the phone would likely fall outside the protected zone of interests. On the other hand, a regular user of the phone line who occupies the residence being called undoubtedly has the sort of interest in privacy, peace, and quiet that Congress intended to protect.

Leyse at *21-22.

Therefore, the actual recipient, whether intended or not, who receives a prerecorded call without prior express consent can sue under the TCPA as long as he is a regular user of that number.  

The Court did note, however, that the burden of proof remained on Leyse to demonstrate that he answered the phone when the prerecorded call was received. Id. at *23. Furthermore, Bank of America can still defend the case by proving it had consent from the "called party," i.e. the intended recipient of the call, which would protect it from any lawsuit brought by Leyse. Id. at *22.