In Castro v. Green Tree Servicing LLC, — F.Supp.2d —-, 2013 WL 4105196 (S.D.N.Y. 2013), Judge Ramos found that including a GLB Privacy Notice with a collection letter was deceptive. Judge Ramos also denied the defendant’s Motion for Summary Judgment on Plaintiff’s TCPA claim. Judge Ramos found questions of fact that an auto-dailer was used and that trapping a consumer’s cell-phone number did not constitute “prior express consent” under the TCPA. Judge Ramos also found that Plaintiff incurring a cost or loss due to the auto-dialed calls was not an element of Plaintiff’s TCPA case.
Defendants’ contention that none of the calls to Plaintiffs’ cellular phones were from an automatic dialer is patently meritless. Green Tree’s own Rule 30(b)(6) witness testified in no uncertain terms that Green Tree placed at least thirty-four calls to Plaintiffs’ cellular phones using an auto dialer. See Mauro Aff., Ex. M (30(b)(6) Depo. Tr.) at 11–12 (“Q. So there’s 34 calls that were made with an auto dialer to the telephone number 845–536–9192, appearing in these notes, correct? A. Yes, sir. Q. And then there are two calls that you are suggesting the auto dialer attempted to call, but the calls didn’t go through? A. That’s correct.”); Ex. B (Verizon Wireless Depo. Tr.) at 4 (confirming that 845–536–9192 is one of Plaintiffs’ cell phone numbers). In an attempt to avoid liability under the TCPA, Defendants distinguish between those calls that were “connected” (i.e., were picked up by Plaintiffs), and those that were not answered or went to Plaintiffs’ voicemail. Defendants suggest that it is “irrelevant” that Green Tree made thirty-four calls to Plaintiffs’ cell phones using an auto-dialer “when there is absolutely no evidence that any of those calls ever connected.” Defs.’ Reply Mem. L. 2. However, the TCPA clearly restricts the making of any call using an automatic telephone dialing system to a cellular phone, and does not distinguish between calls that are picked up and calls that go to voicemail. 47 U.S.C. § 227(b)(1)(A)(iii). Accordingly, for purposes of Plaintiffs’ TCPA claim, it is immaterial whether the Plaintiffs picked up all of Defendants’ calls or whether several of the calls went unanswered. ¶ Moreover, Defendants’ argument that their TCPA violations should be excused on the theory that Plaintiffs did not incur any additional cost as a result of the thirty-four calls at issue fails as a matter of statutory construction. Under the “rule of the last antecedent,” which provides that, where no contrary intention appears, a limiting clause or phrase should be read as modifying only the noun or phrase that it immediately follows, the Court finds that the phrase “for which the called party is charged for the call” only modifies “any service.” See In re Enron Creditors Recovery Corp., 380 B.R. 307, 319, 321–22 (S.D.N.Y.2008) (noting that the Supreme Court has often held that it is “quite sensible as a matter of grammar” to construe statutes in conformity with the rule of the last antecedent) (citation omitted). As Plaintiffs point out, courts that have addressed this issue have routinely held that a plaintiff need not prove that he was charged for a cellular phone call to state a claim under the TCPA. See, e.g., Lynn v. Monarch Recovery Mgmt., Inc., No. WDQ–11–2824, 2013 WL 3071334, at *7 n.37 (D. Md. June 17, 2013) (citing cases); Manfred v. Bennett Law, PLLC, No. 12 Civ. 61548(PAS), 2012 WL 6102071, at *2 (S.D.Fla. Dec. 7, 2012) (“[T]he Court notes that the language of the statute makes it apparent that Plaintiff need not allege that he was charged for the call if he has alleged that the call was made to his cell phone.”); Gutierrez v. Barclays Grp., No. 10 Civ. 1012(DMS)(BGS), 2011 WL 579238, at *5–*6 (S.D.Cal. Feb. 9, 2011) (holding that plaintiffs need not show that they were charged for the calls or texts to their cell phones to prevail under the TCPA); Lozano v. Twentieth Century Fox Film Corp., 702 F.Supp.2d 999, 1009 (N.D.Ill.2010) (“Due to the occurrence of two disjunctive prepositions in the relevant portion of § 227, the phrase ‘for which the called party is charged for the call’ only modifies ‘any service.’ ”) (citation omitted). ¶ With respect to Defendants’ argument that Plain-tiffs consented to the calls at issue, the Court notes that prior express consent is deemed to be granted “only if the wireless number was provided by the consumer to the creditor, and that such number was provided during the transaction that resulted in the debt owed.” In the Matter of Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, CC Docket No. 02–278, 23 FCC Rcd. 559, 564–65 (2008) (“2008 TCPA Order”). The FCC has noted, however, that if a caller’s number is “captured” by a Caller ID without notice to the caller, “the caller cannot be considered to have given an invitation or permission to receive autodialer or prerecorded voice message calls.” Id. at 564 n.34 (citing Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, CC Docket No. 92–90, 7 FCC Rcd. 8752, 8769 (1992)). Accordingly, Defendants’ argument that Plaintiffs “consented” to the calls at issue by initiating calls to Defendants using their cell phones must fail. ¶ Moreover, the Court notes that the evidence on which Defendants rely in support of their argument actually undercuts their position. Specifically, Defendants cite to the deposition transcript of Mario Castro, in which he testified that he did not tell Defendants that they could call him on his cell phone and that he “believe[s]” Defendants obtained his cell phone number when they “grabbed the number from the caller ID.” See Hansen Aff., Ex. K (Mario Castro Depo. Tr.) at 25. This testimony directly contradicts Defendants’ argument, as a reasonable reading of Mr. Castro’s testimony demonstrates that Plaintiffs did not consent to Defendants’ telephone calls. Additionally, in support of their argument, Defendants contend that “plaintiffs made more outgoing calls to Green Tree than they received.” Defs.’ Mem. L. 8. However, Defendants’ assertion is belied by the record in this case. As Defendants admit, Plaintiffs only initiated six calls to Green Tree from their cell phones, whereas Defendants’ Collection Comment List shows that Defendants made several dozens of calls to Plaintiffs’ home and cell phones, and Defendants’ own Rule 30(b)(6) witness testified that Green Tree placed at least thirty-four calls to Plaintiffs’ cell phones. See Mauro Aff., Ex. M (30(b)(6) Depo. Tr.) at 11–12, O; Defs.’ 56.1 Stmt. ¶ 10. Accordingly, the Court finds that material issues of fact exist with respect to Plaintiffs’ TCPA claim, and Defendants’ motion for partial summary judgment is therefore DENIED.