In Pacleb v. Cops Monitoring, 2014 WL 3101426 (C.D.Cal. 2014), Judge Snyder denied a TCPA Defendant’s Motion to Dismiss, following Soppett.
On February 24, 2014, plaintiff Florencio Pacleb filed this putative class action against defendants Cops Monitoring and Does 1 through 10. The operative first amended complaint (“FAC”) asserts claims for: (1) negligent violations of the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227; (2) knowing and/or willful violations of the TCPA; and (3) violations of California Penal Code § 632.7. In brief, plaintiff alleges that he received numerous automated telephone calls to his cellular telephone on December 19, 2013, from defendant, who was “looking for [an individual named] Frank Arnold.” FAC ¶¶ 9–28. Plaintiff further alleges that, during at least one of these calls, defendant “attempted to sell home security to Plaintiff.” Id. ¶ 13. According to plaintiff, defendant used an “automated telephone dialing system” to place these calls, id. ¶ 25, and plaintiff did not provide his “prior express consent” to receive these calls, id. ¶ 28. Plaintiff contends that defendant’s acts represent negligent and/or knowing and/or willful violations of the TCPA. FAC ¶¶ 54, 58.
The District Court denied the defendant’s Motion to Dismiss.
The federal courts are divided as to whether actions under 47 U.S .C. § 227 may be maintained by persons other than the intended recipient of an automated call. Some courts have found that an action for violation of 47 U.S.C. § 227 may only be maintained by the person whom the defendant intended to reach. E.g., Cellco Partnership v. Dealers Warranty, LLC, 2010 WL 3946713, at *10 (D.N.J. Oct.5, 2010). These courts have interpreted the phrase “called party” within 47 U.S.C. § 227(b) to mean the “intended recipient” of the call. Under this interpretation of the TCPA, plaintiff would not be able to maintain an action for violation of 47 U.S.C. § 227 because, according to the allegations in the FAC, defendant was trying to reach an individual named Frank Arnold, and not plaintiff himself. Conversely, other courts have found that the phrase “called party” means “the person subscribing to the called number at the time the call is made.” E.g., Soppet v. Enhanced Recovery Co., 679 F.3d 637, 643 (7th Cir.2012); Olney v. Progressive Cas. Ins. Co., –––F.Supp.2d ––––, 2014 WL 294498, at *2–3 (S.D.Cal. Jan.24, 2014). ¶ The Court finds the latter group of cases to be more persuasive. In particular, the Court is persuaded by the Seventh Circuit’s analysis in Soppett. In Soppett, the court engaged in a detailed analysis of the statutory language of the TCPA. The court observed that the phrase “called party” occurs a total of seven times throughout 47 U.S.C. § 227. 679 F.3d at 640. The court determined that four of those occurrences “unmistakably denote the current subscriber” because they refer to “the person who pays the bills or needs the line in order to receive other calls.” Id. The court also found that a fifth occurrence of the phrase refers to “whoever answers the call,” and that the remaining two occurrences “have a reference that cannot be pinned down by context.” Id. Applying the “presumption that a statute uses a single phrase consistently, at least over [a] short … span,” the court held that all instances of the phrase “called party” in 42 U.S.C. § 227(b)(1) mean “the person subscribing to the called number at the time the call is made.” Id. at 643. The Eleventh Circuit, the only other Court of Appeals to have considered this issue to date, concurs with the Seventh Circuit. See Osorio v. State Farm Bank, F.S.B., 746 F.3d 1242, 1251 (11th Cir.2014). The Court follows the lead of the Seventh and Eleventh Circuits, and concludes that “called party” means the subscriber to the called number at the time the call is made. Here, the plaintiff is alleged to be that person. FAC ¶ 27. Accordingly, the Court finds that the FAC properly alleges that plaintiff is the called party, and may maintain an action for a violation of 47 U.S.C. § 227(b).