In Klein v. Commerce Energy, Inc., 2017 WL 2672290, at *10 (W.D.Pa., 2017), Judge Conti granted summary judgment to a TCPA defendant against a Plaintiff who received calls over VoiP and through Google.
There is no dispute that the challenged calls were made to Klein’s VoIP number. Collectcents and Commerce Energy, however, dispute that either of them can be held liable under the TCPA for any of the calls because Klein cannot show that his VoIP service is a service for which he is charged for calls or even that he otherwise was charged for any of the calls. (ECF Nos. 114 at 7; 120 at 10-11). . . Klein argues that he subscribes to Google’s VoIP, which he has admitted is free to him, and also has a cellular telephone plan through Verizon Wireless that instead of assessing a per use fee for each call simply allows him certain minutes and data per month. (ECF Nos. 124 at 3; 125 at 3-4). He insists that it matters naught whether the consumer is charged for the call on the front end as with a limited bundle of minutes or on the tail end as an itemized charge for each call. See Thomas v. Dun & Bradstreet Credibility Corp., 100 F. Supp. 3d 937, 947 (C.D. Ca. 2015) (depletion of allocated minutes results in a loss of economic value); Telephone Science Corp. v. Asset Recovery Solutions, LLC, No. 15 C 5182, 2016 WL 47916 (N.D. Ill. Jan. 5, 2016) (involving plaintiff’s VoIP service that charged him $.0075 for each inbound call); see also In re Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, 18 FCC Rcd. 14014, 14115 (June 26, 2003) (“The Commission has long recognized, and the record in this proceeding supports the same conclusion, that wireless customers are charged for incoming calls whether they pay in advance or after the minutes are used. Wireless subscribers who purchase a large ‘bucket’ of minutes at a fixed rate nevertheless are charged for those minutes, and for any minutes that exceed the ‘bucket’ allowance.”). The court does not disagree that a call charge on the “front end” might qualify for purposes of the charged call provision under the TCPA. Nevertheless, the called party must be charged for the call for there to be a violation of § 227(b)(1)(A)(iii) where the calls are made to a number not assigned to certain enumerated services, ie., a paging service, cellular telephone service, specialized mobile radio service or other radio common carrier service. Relying on Lynn, 953 F. Supp. 2d 612, Klein asserts that “[c]alls made to a VoIP number with limited minutes/data should be treated the same as calls to a cellphone under the TCPA.” (ECF No. 124 at 3; 125 at 3). Klein’s reliance on Lynn is misplaced. In Lynn the plaintiff submitted evidence that he actually was charged for each of the challenged calls by his particular VoIP service provider; he was charged a monthly fee as well as a per call fee, 953 F. Supp. 2d at 616-617, whereas Klein’s VoIP service is free—meaning he is not charged for the calls to his VoIP number by his VoIP service provider at all. Under the statute a VoIP service is treated differently, though still potentially covered, because it falls within the catchall provision and does not fall within the specifically enumerated services in the series. Collectcents did not make calls to a number assigned to Klein’s cell service, the calls were made to a number assigned to another service, his VoIP service, and then allegedly forwarded by him to his cell service. Klein contends that he should be considered to have been charged for the calls to his VoIP number because he also has wireless service for which he pays a monthly fee for service and the VoIP number is forwarded to his wireless service, that he describes as a “linking” of the numbers. (ECF Nos. 124 at 3-4; 125 at 3-4). This “linking” by him does not mean the VoIP number constitutes or is rendered a number assigned to a cellular telephone service. Even under Klein’s apparent alternative reading that creatively would cover calls forwarded by a plaintiff9 where the plaintiff is charged for the call by the service to which the call is forwarded, (ECF Nos. 124 at 3; 125 at 3), Klein—because of the catchall phrase’s applicability—still must show a charge for the VoIP call. The evidence submitted simply does not show that Klein was charged for any of the challenged calls to his VoIP number and his argument is not evidence. For example, Klein attached copies of his Verizon Wireless bills for calls made for the period from December 19, 2012 through December 18, 2013 in appendices to his opposition to the motions for summary judgment. (ECF Nos. 124-4; 125-4).10 His additional Verizon Wireless bills covering calls from December 19, 2013 through February 18, 2014 are included in the appendices to the Collectcents’ and Commerce Energy’s Concise Statement of Material Facts. (ECF Nos. 122-7, 123-7). Therefore, the court will consider all Klein’s Verizon Wireless bills in the record. Klein provided recordings of twelve voice mail messages, presumably representing the general nature of the offending calls. (ECF Nos. 124-1; 125-1). Other than the twelve voice messages and the Verizon Wireless bills, Klein does not attempt to point to any evidence in the record in support of his assertion that he was charged for the calls. None of Klein’s Verizon Wireless bills, which were provided by Klein, Collectcents and Commerce Energy, are sufficient to establish that Klein paid for any of the challenged calls to his VoIP number because the bills do not upon review reflect any calls originating from the 7575 number, a blocked number or even from Klein’s VoIP number 0702 as a forwarded call. The voice mail messages of the twelve calls to Klein’s VoIP number provided by Klein when considered with the other submissions on summary judgment also do not show any charges for the calls to his VoIP number whether on a per call basis or simply as a recorded charge anywhere on the bills. The voice messages submitted by Klein as representative of the challenged calls all appear to be messages that only were left on Klein’s free Google VoIP’s message service and there is no evidence of any voicemails left on his Verizon cell phone voicemail. Compare, e.g. (ECF Nos. 124-1; 125-1 [scan indicating dates of mp3 recordings provided to court] ), (ECF Nos. 124-3, 125-3 [Google Voice service log of calls and messages] ) and (ECF No. 124-4 [Verizon Wireless bills] ).12 The record evidence simply would not support a reasonable jury finding that Klein was charged for the calls as required to establish his TCPA claim under the catchall phrase of § 227(b)(1)(A)(iii). Klein asserts that his VoIP service is not an unlimited calls/flat fee plan and therefore any calls deplete his store of minutes, meaning he is “charged” for the call. (ECF Nos. 124 at 4; 125 at 4). The problem with Klein’s argument is not with a flat fee plan versus an itemized VoIP minute plan; rather, it is that his argument wholly contradicts the record evidence that his actual Google VoIP service, which assigned him the number erroneously called, is free. Klein confronts the same problem with his argument that he is charged when the calls are forwarded to his Verizon Wireless service, arguably resulting in a violation of the TCPA, because the Verizon Wireless bills do not show any charges or any deduction from a bundle of minutes for the challenged Collectcents’ calls made to Klein’s VoIP number, whether forwarded or not. Klein failed to provide sufficient evidence for a reasonable jury to find that he was charged for any of the challenged calls as required by § 227(b)(1)(A)(iii). Accordingly, Collectcents is entitled to summary judgment with respect to Count I for violation of the TCPA and Commerce Energy is entitled to summary judgment with respect to Count IV for violation of the TCPA and the portion of Count V asserting a claim for vicarious liability for violation of the TCPA.