One of the many criticisms of the Telephone Consumer Protection Act (TCPA), enacted in 1991, is that it has not kept pace with developments in communications technology. Instead, the Federal Communications Commission (FCC), the courts, and litigants have tried to bridge the gap between the TCPA’s language and rapid changes in how calls, texts and faxes are sent. A perfect example of this discord is evident in “Voice over Internet Protocol” (VoIP) technology, which allows users to make phone calls over the Internet. This technology did not exist when the TCPA was enacted. Two recent decisions, from different US District Courts, show how courts are approaching the question of whether and where VoIP fits within the TCPA framework.
Voice over Internet Protocol – The Basics
VoIP works by routing calls to a cell phone either directly through the Internet, or through an adapter connected to a traditional landline. VoIP technology can generally be used to route calls to different numbers or to a single cell phone number. VoIP technology also facilitates other common means of communications, including Skype, FaceTime, Google Voice, and Hangouts.
Read prior Eversheds Sutherland Legal Alerts discussing VoIP issues.
Two Recent VoIP Decisions
Two recent District Court decisions highlight the significance of VoIP calling being largely free of cost for the called party, and the implications for defendants involved in TCPA litigation.
Most recently, the District of Massachusetts added to the growing number of decisions that recognize that calls made to VoIP numbers may trigger TCPA liability if the called party incurs a charge for the call. In Breda v. Cello P’ship, No. 16-11512-DJC (D. Mass. Nov. 17, 2017), the named plaintiff in a putative class action was a former Verizon Wireless customer who alleged she continued to receive calls from Verizon in error allegedly in violation of the TCPA’s prohibition against auto-dialed calls made to cell phones without consent, even after terminating her account.
When she allegedly received these calls, the plaintiff had subscribed to Republic Wireless, a telephone service that uses VoIP for the transmission of calls. Republic “ported” or transferred the plaintiff’s phone number to Bandwidth, a third party that provides VoIP service, by connecting the call to the plaintiff’s cell phone. Significantly, the plaintiff paid a fixed monthly fee for this service and was not charged for each of Verizon’s mistaken...
