It is rather common these days to be bombarded by multiple unsolicited robo calls made to a cell phone. Sometimes though, enough is enough. In a victory for consumers, the Third Circuit Court of Appeals recently reversed a District Judge's decision to dismiss a Complaint filed by an individual who claimed that a single unsolicited robo call made to her cell phone violated the Telephone Consumer Protection Act (TCPA). The case is Sussino v. Work Out World, Inc., Case No. 16-3277
Susinno alleged that on July 28, 2015, she received an unsolicited call on her cell phone from a fitness company called Work Out World (WOW). Susinno did not answer the call, but WOW left a 1-minute voicemail consisting of a prerecorded promotional offer.
Sussino filed a Complaint in the United States District Court for the District of New Jersey claiming that the defendant's phone call and message violated the TCPA's prohibition of prerecorded calls to cell phones. The District Court granted the motion on two grounds: (1) a single solicitation did not meet the activity that Congress was trying to protect the public against; and (2) Sussino sustained no concrete injury as a result of the phone call and voicemail.
Sussino appealed to the Third Circuit, which ruled in her favor. The Third Circuit rejected WOW's argument that the TCPA was enacted to protect unsolicited calls made only to a person's home (or landline). Because the call was made to Sussino's cell phone WOW argued that she had no cause of action. The Third Circuit was unwilling to read the statute so narrowly. "Although it is true that the TCPA placed particular emphasis on intrusions upon the privacy of the home in 1991, this expression of particular concern for residential calls does not limit-either expressly or by implication-the statute's application to cell phone calls. Accordingly, the TCPA provides Susinno a cause of action for the conduct she alleged."
The appeals court next determined that Sussino's Complaint properly plead a concrete injury even though she didn't answer the phone call. Citing prior precedent, the Third Circuit concluded that a concrete injury can exist if the person is suing under a speficic statute (TCPA) intended to protect against that injury.