Noreen Susinno didn t waste any time after she received an unwanted promotional voicemail from a New Jersey gym. After one call to her cellphone, she sued the gym in federal court for violating a law designed to curb unsolicited telemarketing calls.
Susinno s case against Work Out World Inc. was thrown out by a federal judge who said that a single call isn t prohibited by the Telephone Consumer Protection Act. But on Monday, a three-judge panel from the U.S. Court of Appeals for the Third Circuit ruled that it is.
Work Out World argued that the act prohibits a single call only if the recipient is charged for that call, maintaining that the missed call and minute-long voicemail didn t cost Susinno any money.
If it were the case ... that cell phone calls not charged to the recipient were not covered by the general prohibition, there would have been no need for Congress to grant the [Federal Communications Commission] discretion to exempt some of those calls, Third Circuit Judge Thomas Hardiman wrote in the court s opinion. We also think it significant that this section states 'calls to a [cell phone] ... not charged to the called party' can implicate privacy rights that Congress intended to protect, even if the phone s owner is not charged for the call.
The gym also claims that the TCPA section in question pertains to landlines and not cellphones.
However, Hardiman noted, Although it is true that the TCPA placed particular emphasis on intrusions upon the privacy of the home in 1991, this expression of particular concern for residential calls does not limit either expressly or by implication the statute s application to cell phone calls. Accordingly, the TCPA provides Susinno a cause of action for the conduct she alleged."
This is a developing story.