In Birchmeier v. Caribbean Cruise Line, Inc., — F.Supp.2d —-, 2014 WL 3907048 (N.D.Ill. 2014), Judge Kennelly held that a TCPA class was ascertainable, rejected the Defendant’s argument that, under Soppet, only the subscriber had standing and it could not be determined whether the subscriber answered the cellular telephone.

Defendants appear to be making a two-part argument: first, the people with numbers on the list of 930,000 do not necessarily have standing under the TCPA, because plaintiffs cannot prove they were the subscribers for those numbers at the time they received the calls; and second, the classes are not ascertainable for the same reason. Defendants base this argument on Soppet v. Enhanced Recovery Co., 679 F.3d 637, 643 (7th Cir.2012), where the Seventh Circuit defined “called party” within the TCPA to mean “the person subscribing to the called number at the time the call is made.” Defendants argue that this means “[o]nly the person subscribing to a number at the time of a call has” a TCPA claim. Defs.’ Supp. Resp. at 2. They also cite the case for the proposition that “Plaintiffs must propose a method to identify the person who subscribed to the called number at the time of the offending call” in order to certify a TCPA class. Id. at 2.  The Seventh Circuit in Soppet, however, did not hold that “[o]nly the person subscribing to a number at the time of a call has” a TCPA claim.. . . In Soppet, the Seventh Circuit was concerned with the references to “consent of the called party” in these provisions. The plaintiffs had cellular phone numbers that previously belonged to people who, the defendant argued, may have consented to receive phone calls. This Court had held “that only the consent of the subscriber assigned to Cell Number at the time of the call (or perhaps the person who answers the phone) justifies an automated or recorded call.” Soppet, 679 F.3d at 639. The Seventh Circuit evaluated each mention of “called party” in section 227 and “conclude[d] that ‘called party’ in § 227(b)(1) means the person subscribing to the called number at the time the call is made.” Id. at 643. Soppet was about the TCPA’s express consent defense; the court held that only the current subscriber’s consent matters, not the consent of someone who earlier had the same phone number. The court did not hold that the person who actually answers an otherwise TCPA-violating phone call must be the subscriber for the phone number in question in order for a violation of the TCPA to occur. To do so would read out the language “any call” and “any telephone call to any residential telephone line” from section 227. It would also frustrate the purpose of the statute: to end the “annoyance” of receiving robocalls on a home phone line and the addition of “expense to annoyance” when the robocall is made to a cellular phone. Id. at 638; see also Patriotic Veterans, Inc. v. State of Indiana, 736 F.3d 1041, 1050 (7th Cir.2013) (referring to “Congress’s goal” in enacting TCPA “to protect the privacy of citizens against unsolicited telephone calls”). A call remains annoying and intrusive even if the subscriber for the number dialed is not the one answering. For example, a robocall to a home phone can be picked up by anyone who is in the home, thus visiting the annoyance and privacy intrusion on that person, whether or not she pays the phone bill. Likewise, a robocall to a cellular phone does not necessarily have to be answered by the subscriber. A parent is often the operative subscriber (i.e., the one who pays) for family plans that include all calls to and from their children’s cellular phones; the child’s name may not even be on the bill or in the provider’s records. Also, a subscriber’s child or spouse might happen to answer the subscriber’s own cellular phone when a robocall comes in, violating the privacy of the person who answers the call and leaving the subscriber on the hook for the expense. In short, defendants’ argument that class members may not have “standing to bring a TCPA claim,” Defs.’ Supp. Resp. at 3, because they cannot show that they were subscribers to the phone numbers in question is unpersuasive