Action Item: Lenders and servicers should continue to evaluate whether their policies and procedures may result in claims being brought under the Telephone Consumer Protection Act ("TCPA"), including claims brought by parties who are not the intended recipients of their communications, but who share use of the telephone line being called.
In Mark Leyse v. Bank of America, N.A., (3rd Cir. No. 14-4073), decided on October 14, 2015, the United States Court of Appeals for the Third Circuit vacated a ruling by the District Court of New Jersey, which had dismissed the plaintiff's TCPA claim for lack of standing. In its opinion, the Court of Appeals held that the zone of interests protected by the TCPA encompasses more than just the intended recipients of pre-recorded telemarketing calls. Recognizing that there is a split among district courts throughout the country, the Court of Appeals applied the zone of interests test and found that the plaintiff, who was an occupant of the residence and a regular user of the phone line that received a pre-recorded telemarking call, but who was not the intended recipient of the call, fell within the class of plaintiffs that Congress has authorized to sue under 14 U.S.C. § 227.
Pursuant to § 227(b)(1)(B), it is unlawful "to initiate any telephone call to any residential telephone line using an artificial or pre-recorded voice to deliver a message without the prior express consent of the called party..." In Leyse, the defendant's telemarketing call, advertising credit card offers, was intended solely for the plaintiff's roommate, who was the registered telephone subscriber and who had not consented to the telemarketing communication. The plaintiff was not a registered subscriber to the telephone line, but shared the telephone line in question. The district court granted the defendant's motion to dismiss the plaintiff's complaint, finding that because the plaintiff was not the intended recipient of the telemarketing call, he was not a "called party" as defined by the TCPA and therefore lacked standing to sue.
In vacating the district court's ruling, the Court of Appeals held that limiting standing to only those individuals who are the intended recipient of telemarking calls would be contrary to the underlying intent of § 227(b)(1)(B). The Court of Appeals reasoned that "it is the actual recipient, intended or not, who suffers the nuisance and invasion of privacy" and that "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." Notably, the Third Circuit was careful to suggest that there would be limits to the zone of interests protected by the TCPA; for example, it stated that the Act's protections would not extend to a "mere houseguest or visitor who picks up the phone."
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