Just over a week ago, the Honorable Robert J. White from the United States District Court, Eastern District of Michigan, Southern Division, denied a motion by Power Home Remodeling to dismiss a claim alleging the company violated the Telephone Consumer Protection Act (“TCPA”). Nathan James Massarello brought a case against the company in August of 2024, alleging that it used “artificial or prerecorded voice” for “calls it placed to plaintiff’s cellular telephone number and the cellular telephone numbers of the members of the class, without … consent.”
Massarello filed his initial complaint after receiving multiple calls in June of 2024. Judge White wrote that, “As particularly relevant here, Plaintiff alleges that Defendant placed these calls ‘intending to reach someone other than Plaintiff,’” despite Massarello having had the same phone number for “the last ten years.”
Power Home Remodeling had filed a motion to dismiss, arguing that Massarello “is not ‘the called party’ as defined by the TCPA and has no claim here because” they had the permission of the intended call recipient. Massarello’s phone number was dialed in error, they argue.
In his denial of the motion to dismiss, Judge White cited “the relevant portion” of the TCPA, as it relates to the “called party,” noting that—aside from emergency situations or “made with the prior express consent of the called party”—it specifically says “using any automatic telephone dialing system [ATDS] or an artificial or prerecorded voice” is unlawful, as is making calls “to 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 argument, therefore, came down to the definition of “the called party.” Judge White sided with Massarello, noting that “the Court’s holding is consistent with those of the Seventh, Ninth, and Eleventh Circuits, which have taken on this issue already, which are all supported by public policy and practical considerations.” He goes on to write that “it is highly relevant that the statute at no point uses the term ‘intended recipient’ or any terminology indicating the intent of the caller is relevant,” and that “the statutory language supports that the called party is the person who actually received the call. Indeed, the term called party would not be written in the past tense unless intended to refer to a person to whom a call has been made.”
It may sound like semantics, but White pointed out that while the statute establishes an exemption for those who have provided prior consent, “[the] Court here, like the Ninth Circuit … does not think it would make sense to apply the term called party to a third person who could not qualify for this exemption.” He also put on record that “Congress has amended the statute numerous times over its history, most recently in 2019, but at no time has it added language to support the relevance of the caller’s intent (other than allowing treble damages for knowing or willful violations) or any exemption to liability when mistakenly calling a wrong (or reassigned) number.”
As such, White viewed Congress’ opinion as “consistent with the statute’s text and purpose, to impose strict liability for nonconsented-to robocalls, even when innocently made to a wrong or reassigned number.” He added that Power Home Remodeling’s argument that Massarello’s suit would impose “massive liability on callers of wrong numbers” is erroneous.
While Power Home Remodeling argued that Ashland Hosp. Corp. v. SEIU “mandates interpreting the called party as a call’s intended recipient,” Judge White dismissed that as well, noting that the Ashland case “dealt with calls being placed by live people.” Specifically, he wrote, “[the] Sixth Circuit, relying on the phrase’s plain language, rejected this argument and concluded that the plaintiff failed to state a claim where the defendant placed robocalls to various third parties that resulted in the third parties calling the plaintiff in person.”