For businesses that make telemarketing calls to residential telephone lines using an artificial or prerecorded voice, a new Third Circuit Court of Appeals decision expands considerably the scope of potential liability under the Telephone Consumer Protection Act (TCPA) for errant calls and makes it harder to avoid running afoul of the strictures of the statute.
In a new precedential opinion, the Third Circuit held that a "regular user" of a residential telephone has standing to sue under the TCPA, even if that user is not the intended recipient of the call or the subscriber to the line. Leyse v. Bank of America Nat'l Ass'n, No. 14-4073 (3d Cir. Oct. 14, 2015).
The TCPA generally makes it unlawful "to initiate any telephone call to any residential telephone line using an artificial or prerecorded voice to deliver a message without the prior express consent of the called party" except in emergencies or in circumstances exempted by the Federal Communications Commission. The TCPA permits any "person or entity" to bring an action to enjoin violations of the statute and/or recover actual damages or statutory damages ranging from $500 to $1,500 per violation.
By refusing to limit TCPA liability to calls to intended recipients, and instead extending statutory standing to an amorphous and undefinable class of persons falling within the TCPA's "zone of interests," the Third Circuit has made it exceedingly difficult if not impossible for telemarketers to comply with their obligations. In addition, Leyse likely will make it much more difficult for defendants to bring successful motions to dismiss, greatly increasing the time and expense needed to defend TCPA claims and ratcheting up the pressure to settle even claims with little or no merit.
My colleague Gerald Arth recently authored a detailed Alert regarding the Leyse decision. Anyone using the telephone for purposes of marketing should consider reviewing the decision.
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