In the recent case of Leyse v. Bank of America, the Third Circuit U.S. Court of Appeals ruled that the ability to sue under the Telephone Consumer Protection Act (TCPA) extends to the actual recipient of a pre-recorded telemarketing call (otherwise known as “robocalls”), and is not just limited to the intended recipient.
The TCPA was created by Congress to protect individuals from nuisances that invaded their privacy, which includes robocalls. The Act bars callers from “initiat[ing] any telephone call to any residential telephone line using an artificial or prerecorded voice to deliver a message without the prior express consent of the called party, unless the call is initiated for emergency purposes or is exempted by rule or order by the [Federal Communications] Commission.”
In the Leyse case, a single Bank of America robocall was made to Mark Leyse’s and Genevieve Dutriaux’s household, in which they were roommates. While the call was designated for Genevieve, it was Mark who answered the phone. He then initiated a class action suit claiming a lack of consent for the calls.
The trial court dismissed the case, accepting Bank of America’s position that because Mark wasn’t the intended recipient, he lacked the right to sue. On appeal, however, the tide turned. As Judge Julio M. Fuentes wrote, “[i]t is the actual recipient, intended or not, who suffers the nuisance and invasion of privacy… [A] regular user of the phone line who occupies the residence being called undoubtedly has the sort of interest in privacy, peace, and quiet that Congress intended to protect.”
The extension of the right to sue is not without limitation. It isn’t given to those who have no expectation of privacy in a home – for example, a houseguest or other temporary visitor would not be an acceptable person to sue. Also, Article III of the U.S. Constitution still applies, which requires that the person suing suffered actual harm from the call. Consent can also become a roadblock for telemarketing recipients and a shield for defendants-individuals who don’t want to grant permission for telemarketing should double-check the fine print of all signed contracts, which may say that they agree to accept that contact and ask to be removed to the Do Not Call list.
Those who have been affected by unconsented telemarketing must also be aware that despite Leyse’s legal victory, class action suits of this kind can be notoriously difficult to result in success – it must be proven with concrete evidence that each plaintiff involved had a claim to privacy. Nonetheless, the case only strengthens a telemarketing victim’s arsenal against intrusive calls. Loree Varella, Rutgers School of Law Newark candidate for a JD degree in May 2016 collaborated with me on this blog. She is Associate Editor of the Rutgers Computer and Technology Law Journal and Managing Research Editor of that publication.