In Leyse v. Bank of America Nat. Ass’n, 2015 WL 5946456, at *7 (C.A.3 (N.J.),2015), the Court of Appeals for the Third Circuit said that a roommate who was the regular user of a cell phone was afforded standing by the TCPA.
From this evidence, it is clear that the Act’s zone of interests encompasses more than just the intended recipients of prerecorded telemarketing calls. 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 out of it. Congress’s repeated references to privacy convince us that 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. The District Court, however, focused on the plight of the callers, many of whom manage to obtain the consent of their intended recipients. It reasoned as follows: If any person who … answers the telephone call has standing to sue, then businesses will never be certain when … placing a call with a prerecorded message would be a violation of the TCPA. Under the statute, a business is permitted to send a … phone call with a prerecorded message to persons who have given prior express consent…. When a business places such a call [,] … it does not know whether the intended recipient or a roommate or employee will answer the phone…. If the business is liable to whomever happens to answer the phone[,] … a business could face liability even when it intends in good faith to comply with the provisions of the TCPA. (App. 12 (quoting Leyse, 2010 WL 2382400, at *4).) The District Court’s concerns are misplaced. The caller may invoke the consent of the “called party” as a defense even if the plaintiff is someone other than the “called party.” Thus, if Dutriaux were the “called party” by virtue of being the intended recipient of the call, her consent to receive robocalls would shield Bank of America from any suit brought by Leyse. We would not need to deny statutory standing to Leyse in order to protect Bank of America from unanticipated liability. On the other hand, if Leyse were the “called party” despite being an unintended recipient, it is undisputed that he would have statutory standing regardless of the policy considerations raised by the District Court. Finally, we observe that “[b]ecause the TCPA is a remedial statute, it should be construed to benefit consumers.” Gager, 727 F.3d at 271. Even if the various proposed interpretations of the Act were equally plausible—which they are not—the scales would tip in Leyse’s favor. Given the variety of arrangements that exist for sharing living spaces and telephones, there may be close cases under the zone-of-interests test—at least until cell phones entirely displace landlines. Leyse’s, however, is by no means a close case. The complaint alleges that Bank of America placed a call “to Leyse’s residential telephone line.” (App.21.) At the motion to dismiss stage, we are required to treat this allegation as true, and it places Leyse squarely within the zone of interests. We would reach the same conclusion even if we were to look beyond the complaint and consider the allegations made by the parties during oral argument and in other actions. The parties agree that Leyse’s roommate Dutriaux was the subscriber and intended recipient of the call. But Leyse claims that he regularly used the phone, and the fact that he was Dutriaux’s roommate indicates that he, too, had a privacy interest in avoiding telemarketing calls to their shared home. Under the zone-of-interests test, Leyse has alleged enough to survive a motion to dismiss, and it was error for the District Court to dismiss the complaint for lack of statutory standing. We note, however, as we state supra, that it is the actual recipient, intended or not, who suffered the nuisance or invasion of privacy. The burden of proof will, therefore, be on Leyse in the District Court, to demonstrate that he answered the telephone when the robocall was received.