On February 17, the District Court for the Northern District of Illinois in Telephone Science Corp. v. Trading Advantage LLC, et al. denied a motion to dismiss and a motion to compel discovery in an action alleging violations of the Telephone Consumer Protection Act. The interesting thing about the orders were not the denials themselves but the manner in which they were framed. The Court appeared to indicate that a business which collects "dirty" telephone numbers (e.g., previously abandoned numbers that are rejected by a telephone carrier as receiving a large number of calls) can state a claim for automatic telephone dialing system (ATDS) calls made by businesses to those numbers. Such a finding would increase the already broad reach of the TCPA, potentially allowing companies to foster TCPA violations in order to take advantage of the statute's significant monetary penalties.
The plaintiff in the case, Telephone Science Corporation ("TSC"), operates a service that is designed to stop calls delivering a prerecorded message by hanging up on and "blacklisting" certain callers. TSC has a "honeypot" of telephone numbers that it uses to conduct research and improve its call blocking process, and has purchased more than 65,000 "dirty" numbers from telecommunications carrier Twilio to create a data research set. TSC alleges that Defendants made calls to 61 phone numbers that were part of its "honeypot" in violation of the TCPA. Defendants, however, contend that they only contact individuals who have responded to advertisements made by Trading Advantage, and that each of the phone numbers at issue formerly belonged to individuals who contacted Trading Advantage. Defendants assert that TSC is using the TCPA for personal profit, by purchasing second-hand numbers and preying on companies that had a legitimate reason for contacting the prior number owner. In support of their contentions, Defendants sought discovery relating to the operation of TSC's business and "honeypot" to, among other things, obtain information about whether TSC is a "called party" under the TCPA. In addition, Defendants sought to dismiss the case, asserting that the relevant section of the TCPA does not apply to calls made to businesses.
The court denied Defendants' motion to compel and motion to dismiss, foreshowing a possible gross expansion of the reach of the TCPA. In denying Defendants' motion to dismiss, the court rejected the notion that the section of the TCPA prohibiting ATDS or prerecorded voice calls does not apply to calls made to businesses: "The plain language of the statute states that it is unlawful to make 'any call using any automatic telephone dialing system' to 'any telephone number assigned to ... any service for which the called party is charged for the call.'" (Emphasis in original.) In addition, the court found that Defendants did not need additional discovery to reach the issue of whether TSC is a "called party" under the TCPA, or in support of their affirmative defenses for lack of standing and unclean hands.
As the case develops, the import and reach of the court's orders will likely become more clear. In addition, the issue of whether a call to a ported number violates the TCPA, where the call to the original number owner would have been made with consent, is pending before the FCC.
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