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More Relief From Telemarketers

Under the federal Telephone Consumer Protection Act (TCPA), businesses are prohibited from making any telephone calls to a residential telephone number using a prerecorded or artificial voice, without the consent of the called party. A violation of the law can result in a fine of up to $1,500 per violation.

But who can bring the lawsuit against the telemarketer? Previous rulings have held that "any person or entity" can bring the action to stop the activity, as long as the person or entity has "standing." So, who has "standing"? Until now, it appeared that standing was limited to the "called" party," i.e., if Joe Jones was the person called, and Joe Jones answered his home phone and was treated to a pre-recorded telemarketing message, Joe Jones could bring suit. But what if Joe's spouse or roommate picked up the phone?

In a case decided last week (October 14, 2015) in the Third Circuit Court of Appeals, Leyse v. Bank of America, the Court decided that, even if someone who is not the intended recipient of the call answers the call, the business can be sued. In the case, Bank of America made a telemarketing call to a person at his home without his consent. The intended recipient's roommate picked up the call and was treated to a pre-recorded business solicitation. When the roommate filed suit, Bank of America stated that the roommate was not the intended recipient, and had no standing to sue.

The trial court agreed with Bank of America. However, on appeal, the Third Circuit reversed the trial court's ruling. The appelate court ruled that the intent of the TCPA is to protect "...the actual recipient, intended or not, who suffers the nuisance and invasion of privacy."

Does this expansion of standing mean that anyone who picks up the phone at a person's residence will be able to sue when the caller turns out to be an unwelcome automated telemarketing call? No. The court has acknowledged that a visitor who just happens to pick up the phone will probably not have standing, because the TCPA was enacted to protect the privacy rights of the resident. Nevertheless, the ruling is a welcome development for those of us who have had a telemarketing call disturb a family dinner, wake a sleeping baby, or interrupt an important conversation with a neighbor or family member.

Ken Milner