In Lynn v. Monarch Recovery Management, Inc., 2013 WL 3071334 (D.Md. 2013), Judge Quarles refused to certify his opinion that a call to a land-line made over VoIP Protocol fell within the TCPA’s “charged call” liability provisions rather than the TCPA’s “land-line” exemption. The facts, recited in more detail below, were that the Plaintiff set up his land-line through VoIP protocol, and was charged for calls.  The Defendant, a debt collector, called the Plaintiff on his land-line believing that the Plaintiff was the debtor, which he was not.

Since 2006, Lynn has lived on Grouse Court in Frederick, Maryland. Lynn Aff. ¶ 1. The house was previously owned by George Teddy. Id. ¶ 3. Also since 2006, Lynn’s house phone number has been xxx–xxx–2250 (the “2250 number”). Id. ¶ 4. Initially, Lynn subscribed to the 2250 number through Verizon, as a residential line. Id. ¶ 5. On or about June 24, 2009, Lynn obtained Voice over Internet Protocol (“VoIP”) service FN4 for the 2250 number through Canadian company Swiftvox, Inc., d/b/a VoIP.MS. Id. ¶ 6; Lopez FN5 Aff. ¶ 1. VoIP.MS charges Lynn for in-coming calls to the 2250 number, and separately charges Lynn for the transmission of caller ID information of incoming calls. Lynn Aff. ¶ 7.  [FN4. VoIP technology transmits voice calls using a broadband Internet connection instead of a regular phone line. Voice over Internet Protocol (VoIP), Fed. Comm. Commission, (last visited June 13, 2013).] ¶Monarch is a debt collector. Compl. ¶ 3; Am. Answer ¶ 3; ECF No. 42 at 3. Between July 2010 and January 2011, three separate accounts were placed with Monarch for collection. See ECF Nos. 42–1, 42–2, 42–3. Two of the accounts named Teddy as the debtor, and listed Teddy’s address as the same Grouse Court address as Lynn’s. ECF Nos. 42–1, 42–2. The third account named Mark Lynn as the debtor. ECF No. 42–3. Mark Lynn is Lynn’s brother, and has lived in or near Tacoma, Washington for eight years. Lynn Aff. ¶ 23. Monarch “identified” the 2250 number as the telephone number for both debtors. FN8 [FN8. Specifically, Monarch received the phone number from Accurint, see Mazzacano Dep. at 39–40, 127, which Lynn alleges is Monarch’s “skip trace” company. See ECF No. 58 at 2.] ¶  Beginning on July 19, 2010, Monarch began calling the 2250 number to collect on the accounts. ECF No. 48–5; see Mazzacano Dep. at 6.FN9 Monarch called the 2250 number 37 times between July 19, 2010 and May 17, 2011. ECF No. 48–5. The calls were made using Aspect dialer equipment, an automatic telephone dialing system (“ATDS”). ECF No. 33.FN10 In addition to a monthly rate of $1.49, Lynn’s VoIP.MS account for the 2250 number was charged $0.0149 per minute for each of Monarch’s 37 incoming calls, in six-second increments. Lynn Aff. ¶ 9; Lopez Aff. ¶¶ 3–5. The account was separately charged $0.00149 for each transmission of caller ID for the incoming calls. Lynn Aff. ¶ 10; Lopez Aff. ¶ 3. On May 12, 2011, Lynn called Monarch twice and advised the recipient that calling his number cost him on a per-minute basis. Lynn Aff. ¶ 22. Monarch called Lynn three more times, on May 13 and 17, 2011. ECF No. 48–5.

The Court had held on March 25, 2013 that

The Court will assume, for this analysis, that the residential telephone line provision applies to Monarch’s calls and that the calls are within the provision’s regulatory exemption for commercial calls that are not advertisements or solicitations. That Monarch would be entitled to summary judgment for an alleged violation of the residential telephone line provision is irrelevant: no such allegation is present here. Instead, Lynn’s TCPA claims allege that Monarch violated the call charged provision (47 U.S.C. § 227(b) (A)(iii)). Compl. ¶¶ 56, 63. ¶ . . . Monarch asserts that “no court” has held that calls to home phones are “subject” to the TCPA’s call charged provision “simply because the phones are ‘attached’ to VoIP equipment or technology,” ECF No. 42 at 11, and states that one court has held to the contrary, id. In support, Monarch cites Daniel v. West Asset Management, Inc., No. 11–10034, 2011 WL 3207790 (E.D.Mich. July 27, 2011), in which the plaintiff moved for reconsideration of an order dismissing her TCPA claims under the residential telephone line provision, on the grounds that she used “internet telephony.” Id. at *2. The court denied the motion, noting that “there is no indication that the internet telephony service is 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’ under 47 U.S.C. § 227(b)(1)(A)(iii).” Id. Daniel is not binding on this Court. Further, the decision does not indicate whether the “internet telephony” at issue resulted in charges for the incoming calls. See id. Here, it is undisputed that it did. ¶ . . . Monarch’s third and fourth theories are related. Specifically, Monarch argues that Lynn “has not shown and cannot show that his use of VoIP service or technology fundamentally changed the nature of his residential telephone line to which Monarch made calls.” ECF No. 42 at 11; id. at 12 (“[T]here is no practical distinction between a traditional residential telephone line and a residential telephone line with attached VoIP technology or service.”). “In short, plaintiff’s residential telephone line was set up and used like any typical home phone, and so it is appropriately governed by the TCPA residential telephone line provision and the FCC exemptions enacted thereunder.” Id. at 12.FN22 As discussed above, even assuming that Lynn’s use of VoIP service did not fundamentally change the nature of his residential telephone line, Lynn has established that the service charged him for the calls. Lynn’s TCPA claim thus fits squarely within the separate, prohibition of the call charged provision. See supra.

(Lynn v. Monarch Recovery Management, Inc., 2013 WL 1247815 (D.Md. 2013).  The Court affirmed its ruling and would not certify the question to the Court of Appeals.

The language of the TCPA is unambiguous. Section 227(b)(1) (A)-(D) delineates four categories of prohibited conduct. Among those is § 227(b)(1)(A)(iii), which prohibits using an ATDS to call 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.” The parties have stipulated that Monarch’s calls to Lynn used an ATDS. ECF No. 33. The Court found that Lynn’s VoIP service, which he had attached to his residential telephone line, charged him for each of the calls initiated by Monarch. ECF No. 72. Monarch does not dispute this finding for purposes of its § 1292 motion. ECF No. 77 at 4 n. 2. Thus, beginning with the language employed by Congress—and assuming that “the ordinary meaning of that language accurately expresses the legislative purpose”—the TCPA’s call charged provision plainly prohibits Monarch’s conduct. See Albertini, 472 U.S. at 680. ¶ Monarch objects that the TCPA provisions are “intended” to be mutually exclusive, and the exemption for calls to the residential telephone line “cannot be ignored” by applying the “catch-all” call charged provision. ECF No. 77 at 7. Besides quoting the language of both provisions, and citing the basic principle that “the specific governs the general” in questions of statutory interpretation, Monarch provides no authority to support its conclusion that the residential telephone line provision is, in fact, “more specific.” See generally id. at 5–8. Monarch’s sole basis for arguing that the provisions are mutually exclusive is that to hold otherwise would “undermine” congressional intent to “exempt calls made to residential telephone lines that do not contain an unsolicited advertisement or constitute a telephone solicitation.” Id. at 7. ¶  “Courts do try to avoid imputing nonsense to Congress. This means, however, modest adjustments to texts that do not parse.” Soppet v. Enhanced Recovery Co., LLC, 679 F.3d 637, 642 (7th Cir.2012) (Easterbrook, C.J.). Monarch’s interpretation is not wholly implausible, and may be more sensible  given the difficulty of determining whether a called number is attached to VoIP service and thus subject to the TCPA’s call charged provision. However, to the extent that Monarch believes its interpretation pro-motes “better” policy, that argument should be made to the legislature-not the judiciary. See id. (“When a text can be applied as written, a court ought not revise it by declaring the legislative decision ‘absurd.’ Nor should a court try to keep a statute up to date. Legislation means today what it meant when enacted.” (internal citations omitted)).