Friday, April 17, 2015

TCPA: Primary User of Phone has Standing to Bring TCPA Claim

The primary user of a cell phone has standing to bring a TCPA claim irregardless of whether he is the subscriber of the account according to the Middle District of Florida.  In Soulliere v. Central Florida Investments, Inc., C.A. No. 8:13-cv-02860 (M.D. Fl. Mar. 24, 2015), the consumer filed suit against a time share resort, its homeowner association, its management services firm and the management firm’s parent company alleging violations of the TCPA.  The consumer alleged that the management firm violated the TCPA by calling his cell phone without prior express consent.  The consumer alleged the remaining defendants were vicariously liable for the calls.

In cross motions for summary judgment a key issue was whether the consumer had standing to sue.  Defendants contended that because the consumer’s employer provided the cell phone to the consumer for his use, the consumer was not the subscriber and therefore not the called party.  In a fairly detailed analysis, the court acknowledged that the Eleventh Circuit has held that the “called party” means the subscriber of the cell phone service.  The court however, cautioned against construing the term too narrowly, noting that the subscriber may transfer primary use of the telephone to another person thereby authorizing that primary user to consent to being called.  The court therefore construed the TCPA to provide standing to the primary or regular user of the cell phone.  Like other cases, this case leaves open whether the standing provided to the primary user mutually excludes standing to the subscriber.

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