In Yount v. Midland Funding, LLC, 2016 WL 554851, at *7-8 (E.D.Tenn., 2016), Judge Greer granted summary judgment to a TCPA plaintiff who received calls to her cellular telephone by use of an ATDS, even though she was not charged for the calls.
There is no dispute of fact that FKSC made the six telephone calls to plaintiff’s cellular telephone via an automatic telephone system.3 The parties dispute whether the plaintiff was charged for these calls. In addition, the defendant argues that there can be no violation because plaintiff did not actually “receive” or “answer” these calls. The Court will address each issue in turn. The Sixth Circuit has not definitively ruled on whether the last phrase, “or any service for which the called party is charged for the call,” requires that the recipient of an automated call to a cellular telephone be “charged” for that call in order to state a claim under the TCPA when read with the rest of the statute. The defendant urges the Court to follow the United States District Court for the Western District of Michigan’s ruling in Miller v. Timothy E. Baxter & Associates, P.C., No. 1:14-CV-1117, 2015 WL 4922441, at *2 (W.D. Mich. Aug. 18, 2015). That court held that “[t]o state a claim for violation of the TCPA resulting from a telephone call made to a cellular phone, a plaintiff must allege: (1) the defendant placed the call; (2) the plaintiff was charged for the call; and (3) the call was placed using “an automatic telephone dialing system or an artificial prerecorded voice.” Id. (citing Patton v. Corinthian Colleges, Inc., No. 13-14814, 2014 WL 1118467, at *2 (E.D. Mich. Mar. 20, 2014)). However, the plaintiff argues that the Court should follow the Eleventh Circuit’s reasoning in Osorio v. State Farm Bank, F.S.B., 746 F.3d 1242, 1256-1258 (11th Cir. 214). That court held that “charged for the call” modifies “any service” and not the entire list included in the subsection. Id. The Court has reviewed all the cases cited by the parties. The Court finds the reasoning in Osorio more persuasive. Osorio actually analyzed this particular issue in great detail. The reasoning is thorough and sound. Miller, however, did not analyze the issue. It merely stated three elements (which included the “charged for” language) and quoted another Eastern District of Michigan case, Patton v. Corinthian Colleges, Inc., No. 13-14814, 2014 WL 1118467, at *2 (E.D. Mich. Mar. 20, 2014). The Patton case likewise did not provide specific analysis of the exact statutory language at issue either. Moreover, the Sixth Circuit may have telegraphed how it would rule on this issue in Hill v. Homeward Residential, Inc., 799 F.3d 544, 548 (6th Cir. 2015). . . . *8 Id. The court in Hill used section 227(b)(1)(A)(iii) as an example and did not mention the “charged for” phrase as part of the analysis as relating automatic telephone dialing system calls to personal cellular telephones. To be sure, the Court finds the analysis in Osorio persuasive and adopts that same reasoning as to analyzing this exact issue before it. As such, the Court holds that the “charged for” language does not apply to calls made via automatic telephone dialing systems to a personal cellular telephone. Next, the Court must analyze whether the plaintiff must have received or answered the calls in order for defendant to have violated the Act. The Court finds the reasoning in Fillichio v. M.R.S. Associates, Inc., No. 09-61629-CIV, 2010 WL 4261442, at *3 (S.D. Fl. Oct. 19, 2010), persuasive of this issue, and the Court adopts that reasoning. Accordingly, this Court holds that the intended recipient need not have answered the calls. The act of placing the calls triggers the statute. Id. In sum, there is no genuine issue of material fact that FKSC placed six calls via an automatic telephone dialing system to the plaintiff’s cellular telephone, for which she was the intended recipient.4 It matters not that she never actually received these calls. As such, Defendant FKSC has violated the TCPA six times. The plaintiff’s motion for summary judgment is GRANTED in this regard. The TCPA provides that a plaintiff who has received more than one telephone call within any 12-month period by or on behalf of the same entity in violation of the regulations prescribed under this section may bring an action for statutory damages “for each such violation.” 47 U.S.C. § 227(b)(3). The plaintiff is entitled to $500.00 for each violation. § 227(b)(3); see Charvat v. GVN Michigan, Inc., 561 F.3d 623, 630-632 (6th Cir. 2009) (defining “each such violation”). Here, the plaintiff does not seek treble damages. Because there were six calls, the plaintiff is awarded $500.00 for each call for a total of $3,000.00.