In Breda v. Cellco Partnership d/b/a/ Verizon Wireless, 2017 WL 5586661, at *3–5 (D.Mass., 2017), Judge Casper granted summary judgment to a TCPA defendant because Plaintiff’s number had been assigned to a VoiP plan that was not protected by the TCPA. The facts were as follows:
Cellco placed calls to Breda’s phone number to discuss a Verizon customer’s account status in error (the “Verizon Calls”). D. 67, ¶ 5. Cellco had an inaccurate contact phone number for the account, which caused Cellco to continue to call Breda with recorded messages about another person’s account status. Id. When Breda received the Verizon Calls, she had moved her phone service and phone number from Cellco to Republic Wireless (“Republic”). Id., ¶ 6. Republic provides telephone service to customers using technology that “prefers” Voice over Internet Protocol (“VoIP”) for the transmission of its customers’ calls. Id., ¶ 7. Republic does not have direct access to telephone numbers itself and, therefore, “ported” Breda’s telephone number from Cellco to Bandwidth, a third party that provides VoIP service for Republic’s customers. D. 67, ¶¶ 8-10. Bandwidth does not provide cellular telephone service and its customers’ phone numbers are not cellular telephone numbers, but rather “wireline” numbers. D. 67, ¶¶ 11-12. Breda pays a fixed monthly fee for her phone service through Republic and was not charged on a per call basis for the Verizon Calls.
The District Court found no TCPA violation. First, there was no charge to the Plaintiff because she was on a VoiP plan.
Breda’s phone number is not “assigned” to a service for which she was charged for the Verizon Calls because she paid a flat monthly fee for unlimited calls. Cellco points to Breda’s own deposition, in which she states that she pays a flat fee every month no matter how many calls are made. See D. 60, ¶¶ 13-14. Breda argues that because her number was assigned to a cellular telephone service, she does not need to establish that she was charged for the Verizon Calls, though in her response to the statement of facts she denies that her Republic Wireless plan was unlimited. See D. 67, ¶¶ 13-14. While Republic’s representative testified in his Rule 30(b)(6) deposition that Republic can terminate service for a user’s excessive use of calling or texting over the cellular service, nothing in the deposition or elsewhere in the record indicates that additional fees are incurred. D. 83 at 31-32. Accordingly, Breda has not established that she received the Verizon Calls on a phone service for which she was charged on a per call basis.
Second, the District Court found that VoiP service is not a cellular telephone service under the TCPA.
Cellco also argues that Breda’s phone number is not “assigned” to a cellular telephone service within the meaning of the TCPA. Rather, Cellco contends that it is assigned to and listed as a wireline because her telephone service is preferred through VoIP, D. 60, ¶ 12, a technology “ ‘allow[ing] a person to make voice calls using a broadband internet connection instead of a regular (or analog) telephone line,’ ” . . .Breda also argues that subsequent interpretation of the TCPA by the Federal Communications Commission (“FCC”) has shown that the term “cellular telephone service” includes services that are similar in nature from the perspective of the consumer, such as VoIP. Breda admits in her response to the statement of facts that when she transferred her phone service from Verizon to Republic, and its VoIP provider Bandwidth, that she was receiving VoIP services rather than traditional cellular telephone services. D. 67, ¶¶ 9-10. The survival of her claims, therefore, turns on whether VoIP service may be considered cellular telephone service as a matter of law. What few other courts have addressed this question have found that VoIP telephone service may be protected by Section 227(b)(1)(A)(iii) as cellular telephone service only when the plaintiff has raised genuine issues of fact that she “inform[ed] the [defendant] that the number connects to a cell phone,” Ghawi v. Law Offices Howard Lee Schiff, P.C., No. 13-CV-115 (JBA), 2015 WL 6958010, at *4 (D. Conn. Nov. 10, 2015), or where the plaintiff has raised genuine issues of fact that she was charged additionally for the incoming calls to her VoIP service, see Jones, 2016 WL 3945094, at *7; Lynn v. Monarch Recovery Mgmt., Inc., 953 F. Supp. 2d 612, 616-17 (D. Md. 2013) (granting summary judgment for plaintiff where he provided evidence that his account was charged for the relevant calls). Where the plaintiff has not made such showing, courts have granted summary judgment for defendants. See Ghawi, 2015 WL 6958010, at *5 (granting summary judgment as to co-defendant for whom plaintiff had “not alleged or demonstrated that he ever informed [them] … that calls to the 5122 number went to his cell phone”); cf. Karle, 2015 WL 5025449, at *6 (granting summary judgment for defendant where plaintiff admitted in interrogatory that “she never stated it was assigned to a cell phone” (internal quotations and citations omitted)); Nieto v. Allied Interstate, Inc., No. 13-CV-3495 (CCB), 2014 WL 4980376, at *3 (D. Md. Oct. 3, 2014) (indicating, without reaching the issue, that “it is not clear” plaintiff’s VoIP service on his cellular telephone was a cellular telephone service rather than “comparable to a cellular … device,” as shown by defendants through deposition testimony and other facts in the summary judgment record), aff’d sub nom. Nieto v. Allied Interstate, LLC, 599 F. App’x 74 (4th Cir. 2015). The Court adopts this same approach – identifying that VoIP is not cellular telephone service per se, but that a defendant’s knowledge that the VoIP service is received by a cellular telephone can satisfy a claim under Section 227(b)(1)(A)(iii). Furthermore, in other contexts analyzing the TCPA and guidance documents from the FCC, courts have viewed cellular telephone service and VoIP telephone service distinctly. See, e.g., United States v. Dish Network LLC, No. 09-3073, 2017 WL 2427297, at *66 (C.D. Ill. June 5, 2017) (“[s]ince 2007, the FCC has allowed telephone customers to port, or transfer, a number from one type of telephone account to another, e.g., from a wireless account to a VoIP line”); United States v. Dish Network LLC, 75 F. Supp. 3d 916, 932 (C.D. Ill. 2014) (“[t]elephone numbers now may be ported from one location to another and from one type of telephone line to another, e.g., from landlines to VoIP lines, and from landlines to wireless lines”). While Breda relies on a FCC declaratory ruling, which in a footnote referenced viewing “cellular telephone service” as an expansive term including “competing, functionally equivalent (from the consumer perspective) services using spectrum licensed under other names – such as ‘Personal Communication Service,’ ‘700 megahertz service,’ and ‘Advanced Wireless Service’ ” in order to “focus on the consumer-facing nature of the service being used rather than on which spectrum block is used to provide the service,” In the Matter of Rules & Regulations Implementing the Tel. Consumer Prot. Act of 1991, 30 FCC Rcd. 7961, 7988 n.174 (July 10, 2015), this ruling has not been applied by a court to resolve a question of statutory ambiguity in § 227(b)(1)(A)(iii), and the Court declines to do so here. Furthermore, the footnote references multiple alternative types of communication services that could constitute cellular telephones service, but does not reference the TCPA’s defined category of communication services that includes VoIP services as an “advanced communication services.” 47 U.S.C. § 153(1). Accordingly, the Court concludes that VoIP telephone service is distinct from cellular telephone service. Furthermore, if any claim for a violation of Section 227(b)(1)(A) arising from phone calls to a VoIP telephone service exists, the plaintiff must show either that the defendant was aware that the VoIP telephone service connected to a cellular phone or that she was charged pro rata for the relevant calls.