Professional plaintiffs are always trying to come up with new ways to bring TCPA claims. And, as we discussed in a previous blog post, the regulatory blind spots surrounding VoIP services is an increasingly popular target.  A prime example of this trend comes via an expansive opinion recently released by the Western District of Wisconsin, in which the court determined that autodialed calls made to numbers associated with a VoIP application are subject to the TCPA’s heightened consent requirements, at least under certain circumstances.

The Wisconsin case, Baemmert v. Credit One Bank, N.A., involved autodialed calls made to a plaintiff’s account on TextMe, a VoIP application that assigns a telephone number to its users and allows them to send and receive calls and text messages through the Internet rather than cellular services.  The plaintiff claimed that the calls violated the TCPA’s heightened restriction on calls to “any service for which the called party is charged for the call.” But what was the “charge” the plaintiff alleged to have incurred? This is where the case gets interesting.

Any Service for which the Called Party Loses their TextMe Credits

TextMe uses a credit system in which using the app’s various functions depletes the user’s credits, which can be obtained by either buying them or watching advertisements. It is unclear how the plaintiff obtained his credits here, but in either event he alleged that, by calling his TextMe number, the defendant caused the plaintiff’s credits to be used up, thereby creating “charges” and forcing him to lose some of his available credits. This novel argument convinced the court to grant summary judgment in the plaintiff’s favor.

In analyzing the plaintiff’s argument, the court conceded that “[t]he Seventh Circuit has not decided whether this call-charged provision applies to VoIP apps.” It noted, however, that “several courts outside the Seventh Circuit have weighed in, concluding that the call-charged provision applies to VoIP apps.” But is this true? 

  • To be sure, several federal courts have concluded that VoIP services can be subject to the TCPA’s heightened consent requirement where the VoIP customer incurs per-minute charges for inbound calls, and these are the cases the court cites in Baemmert. But no federal court has ever decided a case surrounding the TCPA’s application to an over-the-top VoIP application, especially an application where the “charges” may be credits that the user has not even paid for. Consequently, this case raises many more issues than it settles:
  • Despite many requests for the FCC to rule on the question of whether VoIP service is a “telecommunications service” or an “information service,” the FCC has assiduously refused to categorize VoIP service as a “telecommunications service” at every turn. So why would we believe that Congress intended VoIP service to be a type of “service for which the called party is charged for the call” when all of the other types of “service” in that clause are clearly regulated, common carrier services, and where the FCC has never brought VoIP service into the Title II-regulated common carrier services?
  • Are VoIP apps on a mobile phone to be treated like phone calls to mobile phones in all cases, or is that a fact-specific question?
  • If it’s fact-specific, how can a caller learn those facts before getting sued?
  • Is a per-use charge, like the credits used by TextMe, the same as a per-minute charge for TCPA purposes?
  • Factually, does it matter whether the plaintiff paid for the credits or was awarded them for viewing advertisements? 

Of course, it would be best for the FCC to clarify these and other issues surrounding VoIP services and their relationship to the TCPA. For now, though, it would appear that, at least in the Western District of Wisconsin, VoIP apps are to be treated like calls to mobile phones, and that the heightened TCPA consent requirement applies if the VoIP app subscriber is being charged on a per-minute or per-use basis.

 

About The Author

Meet John, our ethics champion, marathoner, and optimist. His experience managing the firm’s proprietary TCPA case database makes him a valuable source of information on TCPA history and its legal evolution. John is ready to put his knowledge to the test and give every client goal and legal concern the unique attention it deserves.