In Markovic v. Appriss, Inc., 2013 WL 6887972 (S.D.Ind. 2013), Judge Magnuss-Stinson found that a Plaintiff properly pleaded a TCPA case by alleging that calls used up minutes on his plan.
Appriss contends that Mr. Markovic’s Complaint must be dismissed because he has failed to allege that he was specifically charged for the allegedly unlawful call he received from Appriss. [Dkt. 7–1 at 3–4.] Appriss admits that it has not found any binding precedent to support its argument, but it cites a split among district courts that have addressed the issue. [Id.] ¶ In his response, Mr. Markovic cites the purpose of the TCPA and contends that the overwhelming majority of district courts that have addressed the issue have rejected Appriss’ position. [Dkt. 14 at 5–6 (collecting cases).] He urges this Court to follow the majority and conclude that a plaintiff need not allege that he was specifically charged for the allegedly unlawful cellular telephone calls to state a TCPA claim. [Id.] Regardless, Mr. Markovic points out that his Complaint alleges that he used minutes from his cellular telephone plan dealing with Appriss’ call, which he contends is a sufficient charge. [Id. at 7 n. 1 (citing dkt. 1 at 3 ¶ 21).] ¶ Moreover, as Mr. Markovic points out in his response brief, his Complaint specifically alleges that Appriss’ allegedly unlawful call required him to use minutes from his cellular telephone plan, which he contends is sufficient to state a TCPA claim. [Dkt. 14 at 7 n. 1 (citing dkt. 1 at 3 ¶ 21).] Appriss does not reply to this argument. The Seventh Circuit Court of Appeals has pointed out that “[t]he TCPA also protects a limited property interest, even where a consumer has prepaid for a certain number of minutes on his cell phone plan.” Martin, 2012 WL 3292838, at *5 (citing Soppet v. Enhanced Recovery Co., LLC, 679 F.3d 637, 638–39 (7th Cir.2012), reh’g denied, (“[A]n automated call to a cell phone adds expense to annoyance…. [The recipient] is out of pocket the cost of airtime minutes and has had to listen to a lot of useless voicemail.”) (emphasis added) (citing In the Matter of Rules & Regulations Implementing the Telephone Consumer Protection Act of 1991, 18 F.C.C.R. 14014, 14115 (2003) (reaffirming that it is unlawful to make “any call” to a cell phone using an automatic dialing system and noting that even where wireless subscribers purchase a large “bucket” of minutes at a fixed rate, the “bucket” could be exceeded more quickly if consumers receive numerous unwanted calls))); see also In the Matter of Rules & Regulations Implementing the Tel. Consumer Prot. Act of 1991, 23 F .C.C.R. 559, 562 (2008) (FCC recognition that wireless customers are charged for incoming calls whether they pay in advance or after the minutes are used). Thus, even if the TCPA requires Mr. Markovic to have been charged for Appriss’ allegedly unlawful call, he has stated a sufficient claim at this stage by alleging that the call required him to use cellular telephone minutes. Accordingly, Appriss’ Motion to Dismiss must be denied. [Dkt. 7.]