In De Los Santos v. Millward Brown, Inc., 2014 WL 2938605 (S.D.Fla. 2014), Judge Marra found that a TCPA Plaintiff had standing to pursue a TCPA claim despite the fact that the Plaintiff was not charged for the call.
Defendant moves to dismiss Plaintiff’s complaint for lack of standing, arguing that the TCPA requires a plaintiff to be charged for an incoming call to have standing to sue for a violation. The TCPA prohibits autodialing “with[out] the prior express consent of the called party … any telephone number assigned to a paging service, cellular telephone service, specialized mobile radio service, or other radio common carrier service, or any service for which the called party is charged for the call.” 47 U.S.C. § 227(b)(1)(A)(iii) (emphasis added). Defendant argues that the phrase “for which the called party is charged for the call” modifies “any telephone number,” so that only the person or entity charged for the call has a right to be free from autodialing. According to Defendant, because Plaintiff has not alleged that she was charged for Defendant’s call, she suffered no injury: requirement for standing is an “injury-in-fact.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). Plaintiff responds that she has indeed suffered an injury-in-fact. By receiving a call, her statutory right was violated: a statute “creat[es] legal rights, the invasion of which creates standing.” Id. at 579 (internal quotation marks and citation omitted). ¶ The Court must decline Defendant’s proposed interpretation, as the Eleventh Circuit has determined that a defendant violates 47 U.S .C. § 227(b)(1)(A)(iii) by autodialing a cellular telephone service regardless if the called party is charged for the call. See Osorio v. State Farm Bank, F.S.B., 746 F.3d 1242 (11th Cir.2014). In Osorio, the Eleventh Circuit explained that, by the rule of the last antecedent, the phrase “for which the called party is charged for the call” only modifies the term “any service,” and nothing else. See Osorio, 746 F.3d at 1257. Furthermore, it explained that to read the phrase “for which the called party is charged for the call” to modify all the preceding terms would render those terms superfluous, defeating the requirement that courts “give[ ] independent meaning to each [statutory] term.” See id. at 1258. Finally, because the TCPA empowers the Federal Communications Commission (FCC) to exempt “calls to a telephone number assigned to a cellular telephone service that are not charged to the called party,” 47 U.S.C. § 227(b)(2)(C), the TCPA must apply to cellular phones when the called party is not charged for the call. Otherwise, Congress would have no need to authorize an exemption. See id. at 1258. Accordingly, the Eleventh Circuit held that the called party need not be charged for an incoming call to state a claim for a violation of 47 U.S.C. § 227(b)(1)(A)(iii). See id. ¶ To have standing to pursue her TCPA claim, Plaintiff must allege that Defendant violated her “legally protected interest.” Lujan, 504 U.S. at 560. If a called party can state a claim for a violation of 47 U.S.C. § 227(b)(1)(A)(iii) without being charged for an incoming call, then that called party has a legally protected interest in being free from autodialed calls. Under 47 U .S.C. § 227(b)(1)(A)(iii), the term “called party” means the cellular telephone service “subscriber.” See Osorio, 746 F.3d at 1251 (citing Soppet v. Enhanced Recovery Co., LLC, 679 F.3d 637 (7th Cir.2012) (Easterbrook, J.)); Breslow v. Wells Fargo Bank, ––– F.3d ––––, 2014 WL 2565984, at *1 (11th Cir. June 9, 2014) (“ ‘[C]alled party,’ for purposes of § 227(b)(1)(A)(iii), means the subscriber to the cell phone service.”) (citing Osorio, 746 F.3d at 1251)). In the present case, Plaintiff alleges that she was the “sole subscriber, owner, possessor, and operator of” her cellular telephone.2d Am. Comp. ¶ 19. As the subscriber, Plaintiff was the called party. Therefore, because Defendant has invaded Plaintiff’s legally protected interest in being free from autodi aled calls, Plaintiff has standing to sue.
Defendant also argued that the TCPA was an unconstitutional regulation of commercial speech. Judge Marra rejected that argument in a lengthy constitutional analysis.