Alert

New York Northern District Court Reminds That Only a “Called Party” May Bring a TCPA Claim

June 27, 2024

On June 10, 2024, the United States District Court for the Northern District of New York reiterated that a claim for violation of the Telephone Consumer Protection Act (TCPA) cannot be maintained by a consumer who is neither a subscriber of the called telephone number that is billed for the call nor a non-subscriber customary user of the called telephone number which is included in a family or business cellular plan.

Case Background

In Blume, a pro se plaintiff alleged that she obtained two student loans, which were co-signed by her aunt. The plaintiff alleged that after graduating from college and finding full-time employment, she began to repay the loans and requested the student loan servicer release her aunt from liability as co-signor. The plaintiff claimed that subsequently, the loan servicer harassed her aunt every day by making robo-calls, although the plaintiff’s aunt requested that she be contacted only by mail. Additionally, the plaintiff alleged that the loan servicer called her work phone number even though she never consented to be contacted at work.

After removal of the action, the loan servicer moved to dismiss the complaint, arguing that the plaintiff failed to state a claim under the TCPA because such a claim is based on calls to the plaintiff’s aunt rather than to the plaintiff, and the plaintiff did not allege that the loan servicer called her in violation of the TCPA.

Court’s Analysis Under the TCPA

The court in Blume initially observed that under the TCPA, it is unlawful “to initiate 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, is made solely pursuant to the collection of a debt owed to or guaranteed by the United States, or is exempted by rule or order by the Federal Communications Commission (FCC).”  The court then noted that only “called parties” may state a claim under the TCPA.

As the FCC defines a “called party” as “the subscriber, i.e., the consumer assigned the telephone number dialed and billed for the call, or the non-subscriber customary user of a telephone number included in a family or business calling plan,” the court in Blume held that the plaintiff “failed to allege she was a ‘called party’ within the meaning of the TCPA.” Therefore, the allegations in the complaint that the loan servicer called the plaintiff’s aunt and that it did not contact the plaintiff were deemed fatal to the TCPA claim.  

The Court dismissed the TCPA claim, but remanded for further proceedings plaintiff’s claims under the New York General Business Law § 349 and New York Banking Law § 719 et seq.

Key Takeaway from the Blume Decision

The Blume decision underscores that only a certain category of consumers— “called party”—may avail themselves of protections afforded under the TCPA and seek to enforce such in court.