In Martin v. Leading Edge Recovery Solutions, LLC, 2012 WL 3292838 (N.D.Ill. 2012), Judge Lefkow found that a TCPA Plaintiff stated Article III standing under the ‘damages’ pleaded.
Defendants argue that “injury in fact” should be equated with “actual damages,” and that plaintiffs’ failure to allege actual damages indicates that they lack standing. Leading Edge asserts that plaintiffs must allege that they were charged in excess of their usual monthly plan or that they suffered some emotional distress. Capital One asserts that plaintiffs must allege that they suffered a concrete monetary loss, answered the unwanted cell phone calls, were called a certain (unspecified) number of times, or actually listened to the prerecorded voice messages. The issue of standing, however, is distinguishable from the merits of plaintiffs’ claims. See, e.g., Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 89, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998) ( “Jurisdiction … is not defeated … by the possibility that the averments might fail to state a cause of action in which petitioners could actually recover.” (citation omitted)). To determine whether plaintiffs have standing under Article III, the relevant question is “whether the con-stitutional or statutory provision on which the claim rests properly can be understood as granting persons in the plaintiff’s position a right to judicial relief.” See Discovery House, Inc. v. Consolidated City of Indianapolis, 319 F.3d 277, 279 (7th Cir.2003) (quoting Warth, 522 U.S. at 500). As discussed above, plaintiffs plainly suffered injuries to interests that are protected by the TCPA. Defendants have cited no case holding that monetary loss or emotional distress is a prerequisite for Article III standing. Cf., e.g., Lujan, 504 U.S. at 562–63 (“the desire to use or observe an animal species, even for purely esthetic purposes, is undeniably a cognizable interest for purposes of standing”); Havens Realty Corp. v. Coleman, 455 U.S. 363, 374, 102 S.Ct. 1114, 71 L.Ed.2d 214 (1982) (black “tester” plaintiff had standing to bring for vio-lations of the Fair Housing Act where she “alleged injury to her statutorily created right to truthful hous-ing information”).[FN5–FN5. In their motions to dismiss, defendants repeatedly assert that the court’s analysis must be governed by the Supreme Court’s anticipated decision in Edwards v. First American Corporation, 610 F.3d 514 (9th Cir.2010), cert. granted ––– U.S. ––––, 131 S.Ct. 3022, 180 L.Ed.2d 843 (2011). After briefing was complete, the Supreme Court dismissed the writ of certiorari in Edwards as improvidently granted. See 131 S.Ct. 2536 (2012). Therefore the Ninth Circuit’s opinion, which holds that a plaintiff has standing to file suit under the anti-kickback provision of the Real Estate Settlement Procedures Act even if she is not overcharged as a result of the violation, is still good law. Edwards is not binding on this court, but it provides significant persuasive authority in support of the conclusion that plaintiffs need not allege actual damages in order to establish injury in fact.] ¶ Moreover, neither the text nor legislative his-tory of the TCPA supports defendants’ position. Plaintiffs need not allege monetary loss in order to bring suit for violations of the TCPA. See discussion infra at p. 10–11; see also 47 U.S.C. § 227(b) (3) (stating that a person may recover “actual monetary loss” from the violation or $500 per violation, whichever is greater). Moreover, Congress concluded that “any” automated or prerecorded call would be an invasion of the called party’s right to privacy, and its findings indicate that even a de minimis number of automated calls or voicemails would not be condoned. See note following 47 U.S.C. § 227 (“Banning such automated or prerecorded telephone calls to the home … is the only effective means of protecting telephone consumers from this nuisance and privacy invasion.” (emphasis added)). Nothing in the statute indicates that Congress sought to protect only those consumers who listened to the prerecorded voicemails, answered the unwanted calls, or received a specified number of calls. Finally, Congress stated that one of the purposes of the TCPA was to protect telephone subscribers from the “nuisance” of unwanted calls, see id., further undermining Leading Edge’s position that plaintiffs are required to allege emotional distress. ¶ For all of these reasons, plaintiffs have sufficiently alleged that they suffered “injury in fact” required for Article III standing. Defendants do not contest that plaintiffs have satisfied the other re-quirements for standing, namely causation and redressability. Defendants’ motions to dismiss for lack of subject matter jurisdiction will be denied.
Judge Lefkow also found that a TCPA Plaintiff need not plead that he/she was actually charged for the call to his/her cellular telephone in order to state a claim. Judge Lefkow explained:
Plaintiffs claim that defendants violated 47 U.S.C. § 227(b)(1) (A)(iii), which provides that it shall be unlawful to use an automatic telephone dialing system to make non-emergency calls “to any tel-ephone 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.” (emphasis added). Another court in this district concluded that the phrase “for which the called party is charged for the call” only modifies the phrase “any service” and that therefore the TCPA is violated even if the called party does not incur a charge that is specifically linked to the automated call. Lozano v. Twentieth Century Fox Film Corp., 702 F.Supp.2d 999, 1009–10 (N.D.Ill.2010). The statute, read as a whole, supports this conclusion. See Abbas v. Selling Source, LLC, No. 09–3413, 2009 WL 4884471, at *3 (N.D.Ill.Dec.14, 2009). Congress amended the TCPA in 1992 to provide that the Federal Communications Commission (“FCC”) may issue rules or orders that “exempt … calls to a telephone number assigned to a cellular telephone service that are not charged to the called party.” See 47 U.S.C. § 227(b)(2)(C). If the TCPA only prohibited calls to cell phones that result in a charge to the called party, then it would be unnecessary to create exemptions for uncharged calls. Abbas, 2009 WL 4884471, at *3. “Courts avoid such ineffective statutory construction.” Id. (citing In re Merchants Grain, Inc., 93 F.3d 1347, 1353–54 (7th Cir.1996)). ¶ Leading Edge does not cite to any section of the TCPA or its legislative history to support its position that a plaintiff must allege that he was charged for a call in order to state a claim under the Act. The only case cited by Leading Edge, Knutson v. Reply!, Inc., No. 10–1267, 2011 WL 291076, at *1 (S.D.Cal. Jan.27, 2011), simply asserts without citation to authority that a plaintiff must plead that it was charged for the call in order to state a claim under the TCPA. In that case, the plaintiff specifically alleged that he was charged for incoming calls and the court did not analyze the issue in detail. Knutson is not persuasive. ¶ The plain language of the statute supports plaintiffs’ position that an automated call is prohibited by the TCPA even if the called party does not incur a charge that is specifically linked to that call. Taking all of the allegations in the complaint as true, plaintiffs have successfully alleged that Leading Edge violated the TCPA by using automated dialing equipment to call their cell phones. Leading Edge’s motion to dismiss for failure to state a claim will be denied.