Recently, the United States Court of Appeals was called upon to determine whether an unsolicited call that did not result in a charge to the consumer violated the Telephone Consumer Protection Act (“TCPA”) and, if it did, was the harm sufficiently concrete to provide plaintiff with standing to sue. Susinno v. Work Out World, Inc. (3^rd Cir. July 10, 2017).

In this case, plaintiff alleged that she received an unsolicited call on her cell phone from a fitness company. She did not answer the call and the company left a prerecorded offer on her voicemail lasting one minute. Plaintiff’s complaint asserted that the phone call and message violated the TCPA’s prohibition of prerecorded calls to cell phones. The lower court dismissed the case on defendant’s motion, but the Third Circuit reversed.

On appeal, the defendant argued that the TCPA does not prohibit a single prerecorded call if the phone’s owner is not charged for the call. The appellate court disagreed with the defendant’s statutory interpretation. In addition, the court cited a provision of the TCPA that indicates calls to a cell phone “that are not charged to the called party” can implicate “privacy rights” that Congress “intended to protect” even if the phone’s owner is not charged. Thus, the court ruled, plaintiff established a violation of the TCPA.

With regard to the issue of concrete injury, the court relied upon the U.S. Supreme Court’s recent 2016 decision in Spokeo v. Robins finding that standing to pursue a violation of a federal law requires “concrete injury.” Here, the Third Circuit ruled that plaintiff alleged concrete injury because the injury alleged is the very injury the statute was intended to prevent.

Telemarketers and other businesses are cautioned to comply with applicable provisions of the TCPA and consider seeking counsel before embarking down a questionable path.