• Voice Over Internet Protocol and the TCPA: The Hidden Pothole on the Information Super Highway
  • July 27, 2016 | Authors: Thomas M. Byrne; Juan C. Garcia; Patricia A. Gorham; Phillip E. Stano; Rocco E. Testani
  • Law Firms: Eversheds Sutherland (US) LLP - Atlanta Office; Eversheds Sutherland (US) LLP - Houston Office; Eversheds Sutherland (US) LLP - Atlanta Office; Eversheds Sutherland (US) LLP - Washington Office; Eversheds Sutherland (US) LLP - Atlanta Office
  • Since the enactment of the Telephone Consumer Protection Act (TCPA) in 1991, technological advances in the way people communicate have often outpaced the ability of the courts and the Federal Communications Commission to reconcile those advances with the TCPA. The proliferation of cell phones and other devices and the omnipresence of the Internet, unimaginable 25 years ago, have resulted in an avalanche of TCPA class actions. One emerging development in this realm is “Voice Over Internet Protocol” (VoIP) technology. Only a few courts have addressed issues relating to VoIP and the TCPA, and so far the FCC has remained silent on the issue.

    VoIP is a technology that allows a user to make phone calls over the Internet. One way is by routing calls to a cell phone, either directly through the Internet, or through an adapter connected to a traditional landline. Generally, VoIP technology can be used to route calls to different numbers or to a single cell phone number.

    Sutherland Observation: As a way to mitigate potential pitfalls, companies should consider asking customers and prospective customers if they use VoIP technology.

    The language of the TCPA does not specifically address VoIP technology because VoIP technology did not exist in 1991 when the TCPA was enacted. What the TCPA does state, however, is that a party may not use an automatic telephone dialing system (ATDS) to call: (1) any cell phone; or (2) any other phone “for which the called party is charged for the call.” 47 U.S.C. § 227(b)(1)(A)(iii). The obvious question is: What happens when an ATDS is used to call a VoIP number?

    The FCC has not yet addressed the TCPA/VoIP issue, but federal district courts are beginning to weigh in, but with inconsistent results. The District of Maryland was the first to address this issue. In Lynn v. Monarch Recovery Mgmt., 953 F. Supp. 2d 612 (D. Md. 2013), the plaintiff used VoIP technology to connect his residential line to his cell phone and was charged for all calls rerouted through the VoIP. The court did not look at whether the defendant was aware that the plaintiff was charged for the calls, and held that under a plain reading of the “unambiguous ... prohibition of the call charged provision,” the defendant was liable under the TCPA.

    Two years later, in Karle v. Southwest Credit Sys., 2015 WL 5025449 (D. Mass. June 22, 2015), the plaintiff was not charged for calls made to her VoIP line, for which she paid a flat, monthly fee. The court found that the plaintiff had not submitted evidence showing that the VoIP line transmitted to her cell phone, and the court granted summary judgment to the defendant.

    Then, in Ghawi v. Law Offices of Howard Lee Schiff, P.C., 2015 WL 6958010 (D. Conn. Nov. 10, 2015), calls from the defendant to the plaintiff’s landline were transmitted to the plaintiff’s cell phone through VoIP technology. The court acknowledged the sparse case law on the issue of VoIP and the TCPA, but ultimately held that “there is no apparent conceivable reason” to exempt the defendant caller from TCPA liability “at least where, as here, the caller informs the debt collector that the number connects to a cell phone.”

    Most recently, the Western District of Pennsylvania briefly addressed the issue in Klein v. Just Energy Group, Inc., 2016 WL 3539137 (June 29, 2016). In this decision, the district court granted summary judgment on other grounds and left open the question of whether the defendants could be liable for calls placed to the plaintiff’s VoIP service, which the court noted did not charge the plaintiff on a per-call basis.

    These cases leave open the question of whether a caller can be held liable under the TCPA for using an ATDS that transmits a call through VoIP to a cell phone, but the receiving party is not charged for the call, and the caller does not know that its call is being routed to a cell phone. This scenario and other issues will likely come to the forefront of TCPA law as VoIP technology becomes increasingly common and traditional landlines are used less and less frequently.

    Sutherland Observation: While there is no perfect way to weed out prospective complaints involving VoIP technology, there are numerous flaws in these theories, particularly if pled as class actions. Sutherland’s attorneys will continue to monitor the legal landscape as it develops.