Third Circuit Clarifies Statutory Standing for TCPA Robocalls | Practical Law

Third Circuit Clarifies Statutory Standing for TCPA Robocalls | Practical Law

In Leyse v. Bank of America Nat. Ass'n, the Third Circuit Court of Appeals clarified standing under the Telephone Consumer Protection Act (TCPA), which permits a plaintiff to sue a party that used an artificial or prerecorded voice to call a residential telephone line without the called party's consent. The Third Circuit applied a zone of interests analysis to extend standing beyond the intended recipient and include actual recipients who regularly use the phone and occupy the residence.

Third Circuit Clarifies Statutory Standing for TCPA Robocalls

Practical Law Legal Update w-000-6808 (Approx. 5 pages)

Third Circuit Clarifies Statutory Standing for TCPA Robocalls

by Practical Law Commercial Transactions
Published on 16 Oct 2015 • USA (National/Federal)
In Leyse v. Bank of America Nat. Ass'n, the Third Circuit Court of Appeals clarified standing under the Telephone Consumer Protection Act (TCPA), which permits a plaintiff to sue a party that used an artificial or prerecorded voice to call a residential telephone line without the called party's consent. The Third Circuit applied a zone of interests analysis to extend standing beyond the intended recipient and include actual recipients who regularly use the phone and occupy the residence.
On October 14, 2015, in Leyse v. Bank of America Nat. Ass'n, the Third Circuit Court of Appeals clarified standing under the Telephone Consumer Protection Act (TCPA) ( (3d Cir. Oct. 14, 2015)). The newly adopted standard permits more plaintiffs to sue a party accused of using an artificial or prerecorded voice to call a residential telephone line without the called party's consent. It applies a zone of interests analysis that gives a plaintiff standing if he is the actual recipient of the call, a regular user of the phone and occupies the residence intended to be called, even if he is not the intended recipient of the call.

Background

The plaintiff, Mark Leyse, brought an action against Bank of America after his residence received a prerecorded call from a telemarketer advertising credit cards for Bank of America. His roommate was the telephone subscriber and intended recipient of the call, as her number was associated with the telemarketing company's records. It was unclear from the complaint whether Leyse, the roommate or the answering machine picked up the call.
Bank of America argued that Leyse lacked standing because he was not the intended recipient of the call. The US District Court for the District of New Jersey agreed, dismissing Leyse's case due to lack of standing. The Third Circuit Court of Appeals reversed, holding that Leyse had standing to sue under the new analysis.
The court determined that the TCPA's language, along with accompanying Congressional testimony, brought Leyse within the zone of interests the TCPA protects, and gave him standing to sue Bank of America for the call.

Standing Requirements Under the TCPA

The TCPA makes it unlawful to initiate any call to a residential telephone line using an artificial or prerecorded voice to deliver a message, without the prior express consent of the called party (47 U.S.C. § 227(b)(1)(B)). There is a split among the district courts on who is entitled to sue under the statute, which states that a "person or entity" may bring an action to enjoin violations of the statute and recover damages (47 U.S.C. § 227(b)(3)). Given the statute's broad language, courts have held that statutory standing is either:
  • Limited to the called party, which they define as the intended recipient of the call.
  • Limited to the called party, which they define as a regular user of the phone.
  • Not defined by the term called party, but is nonetheless limited to the subscriber or primary user of the phone.
  • Not defined by the term called party because the TCPA authorizes any person or entity to sue.
The district court's decision interpreted the relevant subsection to limit standing to the called party, defined as the intended recipient of the call, dismissing Leyse's claim because he was an unintended and incidental recipient.

New Zone of Interests Interpretation

The Third Circuit Court of Appeals applied a zone of interests analysis, extending the right to bring an action under the TCPA to plaintiffs who fall within the zone of interests protected by the law, without defining or limiting standing to the called party.
Instead, the court stated that Congress enacted the TCPA to protect consumers' privacy, including an actual called party, intended or not, who can reasonably expect protection from nuisance and invasion of privacy.
Under the zone of interests test, Leyse alleged enough to survive a motion to dismiss and the Court of Appeals reversed the district court's decision. However, the court determined that under the zone of interests test, to affirmatively prove standing, the plaintiff must show that he was the actual recipient, as well as a regular user of the phone and occupant of the residence that was called.
For more information on the TCPA see Practice Note, TCPA Litigation: Key Issues and Considerations.