Breda v. Clellco P'ship

934 F.3d 1

Robin BREDA, Plaintiff, Appellant/Cross-Appellee,

v.CELLCO PARTNERSHIP, d/b/a Verizon Wireless, Defendant, Appellee/Cross-Appellant.

Nos. 17-2196

18-1010

United States Court of Appeals, First Circuit.

August 2, 2019

Keith J. Keogh, Chicago, IL, with whom Keogh Law Ltd., Sergei Lemberg, and Lemberg Law LLC were on brief, for appellant/cross-appellee.

David G. Thomas, with whom Emily H. Bryan and Greenberg Traurig, LLP, Boston, MA, were on brief, for appellee/cross-appellant.

Before Torruella, Lipez, and Kayatta, Circuit Judges.

LIPEZ, Circuit Judge.

Robin Breda sued Verizon Wireless, claiming that its unauthorized, automated calls to her cellular telephone violated the Telephone Consumer Protection Act. After denying Verizon's motion to compel arbitration, the district court granted summary judgment for Verizon, concluding that Breda's claims failed because her telephone number was not "assigned to a ... cellular telephone service" within the meaning of the relevant provision of the Act. In granting summary judgment for Verizon, however, the district court did not consider the hybrid nature of Breda's telephone service with Republic Wireless and erroneously treated other facts as dispositive. Contrary to the district court, we conclude that Breda's telephone number is "assigned to a ... cellular telephone service" within the meaning of the Act. Accordingly, although we affirm the district court's denial of Verizon's motion to compel arbitration, we reverse the district court's grant of summary judgment in Verizon's favor.

I.

The Telephone Consumer Protection Act of 1991 ("TCPA"), 47 U.S.C. § 227, addresses the nuisance and invasion of privacy caused by automated or prerecorded telephone calls. See Mims v. Arrow Fin. Servs., LLC, 565 U.S. 368, 372, 132 S.Ct. 740, 181 L.Ed.2d 881 (2012) (summarizing congressional findings).¹ Among its provisions, the TCPA prohibits

mak[ing] any call (other than a call made for emergency purposes or made with the prior express consent of the called party) using any automatic telephone dialing system or an artificial or prerecorded voice ... 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, unless such call is made solely to collect a debt owed to or guaranteed by the United States[.]

47 U.S.C. § 227(b)(1)(A)(iii).² Therefore, as relevant to this appeal, the elements of a TCPA claim are: (1) the defendant used an automatic dialing system or an artificial or prerecorded voice,³ (2) to call a telephone number assigned to a cellular telephone service or to a service for which the called party is charged for the call. See Levy v. Receivables Performance Mgmt., LLC, 972 F. Supp. 2d 409, 417 (E.D.N.Y. 2013).⁴ That is, if the plaintiff's telephone number is assigned to a cellular service, she does not have to also prove that she was charged for incoming calls. See Susinno v. Work Out World Inc., 862 F.3d 346, 349 (3d Cir. 2017). The TCPA is a strict liability statute, see Alea London Ltd. v. Am. Home Servs., Inc., 638 F.3d 768, 776 (11th Cir. 2011), but provides for treble damages in the case of "willful[ ] or knowing[ ]" violations, 47 U.S.C. § 227(b)(3).

II.

The following facts are undisputed, unless otherwise noted. Breda opened an account with Verizon Wireless ("VZW") for cellular telephone service in 2003. VZW provided her with both a telephone number and a telephone plan pursuant to a Customer Agreement. The Agreement provides, in relevant part:

You and Verizon Wireless both agree to resolve disputes only by arbitration or in smalls claims court .... We also both agree that ... the Federal Arbitration Act applies to this agreement. Except for small claims court cases that qualify, any dispute that in any way relates to or arises out of this agreement or from any equipment, products and services you receive from us ... will be resolved by [arbitration].

The Agreement also states that VZW treats the customer's request to transfer the covered telephone number to another provider "as though you asked us to cancel your Service for that number."

Breda was a VZW customer until 2015, when she switched her telephone service to a "Wi-Fi + Cell Talk + Text Service Plan" with Republic Wireless ("Republic"). Republic does not have direct access to telephone numbers and must obtain them from, or "port" them to, an entity authorized to provide numbers by the relevant regulatory authorities.⁵ Therefore, Republic "ported" Breda's telephone number to Bandwidth.com, Inc. ("Bandwidth"), a third party with authority to "provide" telephone numbers. Bandwidth only has authority to provide "wireline" numbers, and Breda's telephone number was listed by Bandwidth as a "wireline," rather than "wireless,"⁶ number on Neustar, a "neutral provider of real-time information and analytics to the Internet, communications, ... and marketing industries." Neu[s]tar, Inc., SEC Form 10-K (FY 2011), https://www.sec.gov/Archives/edgar/data/1265888/000119312512088186/d233580d10k.htm (last visited July 31, 2019).⁷

Republic provides telephone service to its customers using a system that "prefers" Voice over Internet Protocol ("VoIP") technology for the transmission of calls.⁸ When a call is made to Breda's telephone number, it is first received by Republic's servers. Republic determines whether Breda's smartphone is connected to wireless internet ("Wi-Fi"). If it is, Republic routes the call using VoIP technology through Bandwidth, which provides VoIP service for Republic's customers. If Breda's phone is not connected to Wi-Fi, Republic passes the call off to a third-party cellular service provider (either Sprint or T-Mobile), which routes the call to Breda's phone using its cellular network. Breda ordinarily turns off the Wi-Fi function on her phone when she leaves her house in the morning and turns it back on when she returns home at night. That is, if Breda remembers to turn off the Wi-Fi function, she only receives calls through a cellular network when she is away from home. Breda pays a set monthly fee for her telephone service, which includes unlimited calling. Incoming calls do not reduce the number of minutes available to her under her plan.

At some point after switching to Republic, Breda began receiving automated calls from VZW that included a prerecorded voice prompt announcing the calls were intended for an unrelated person. When prompted, Breda pressed a button to indicate she was not the intended recipient. Breda also spoke to a live VZW representative, informed that person that she was receiving the calls in error, asked that the calls stop, and was told they would. However, the calls continued for a period of time.⁹ Republic's records confirm that several of VZW's calls were transmitted to Breda's phone through a cellular network.

Based on these automated calls, Breda filed a class action complaint alleging violations of the TCPA.¹⁰ VZW raised arbitrability as an affirmative defense. However, in the subsequently filed joint case management report, the parties agreed that the matter "presently is not suitable for alternative dispute resolution." There was no dispute that Breda was no longer a VZW customer at the time she received the calls underlying her TCPA claims.

After VZW moved for summary judgment, Breda filed a response in opposition in which she stated, inter alia:

• "The number at issue is assigned to cellular service; Ms. Breda obtained the telephone number from a cellular service plan with Verizon Wireless before she switched providers to Republic Wireless. At that time, she used her same cellular telephone number to make and receive calls. When Ms. Breda signed up for Republic Wireless, she kept the same cellular telephone number that Verizon assigned to her. She continues to use that same cellular telephone number to make and receive calls on her [smartphone]." Pl.'s Opp'n to Summ. J., Dkt. # 66, at 2-3 (citations omitted).

• That a particular ruling by the Federal Communications Commission ("FCC") "supports [her] position that her cellular telephone number initially assigned to her by Verizon as part of her Verizon cellular service is assigned to a cellular service." Id. at 12.

VZW then filed a motion to compel arbitration and dismiss or stay the case, contending that Breda's claims were now subject to the Agreement's arbitration clause because she had, in her response in opposition to summary judgment, linked her claims with the services provided under that Agreement.

The district court denied VZW's motion to compel arbitration but granted its motion for summary judgment. Breda timely appealed the grant of summary judgment, and VZW timely cross-appealed the denial of its motion to compel.¹¹

III.

VZW contends that Breda's claims are subject to the Agreement's arbitration provision. We review the denial of a motion to compel arbitration de novo. Conduragis v. Prospect Chartercare, LLC, 909 F.3d 516, 517 (1st Cir. 2018). Although the party seeking to compel arbitration has the burden of demonstrating that a particular claim comes within the scope of an arbitration agreement, Soto-Fonalledas v. Ritz-Carlton San Juan Hotel Spa & Casino, 640 F.3d 471, 474 (1st Cir. 2011), we generally resolve ambiguities in favor of arbitration, which is consistent with federal policy, Grand Wireless, Inc. v. Verizon Wireless, Inc., 748 F.3d 1, 7 (1st Cir. 2014).

Claims arising after the expiration of a contract containing an arbitration provision, however, are only presumed to be subject to arbitration if the "dispute has its real source in the contract." Litton Fin. Printing Div. v. NLRB, 501 U.S. 190, 205, 111 S.Ct. 2215, 115 L.Ed.2d 177 (1991). A dispute has its real source in an expired contract "only where" the dispute

involves facts and occurrences that arose before expiration, where an action taken after expiration infringes a right that accrued

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