Breda v. Cellco Partnership , 934 F.3d 1 ( 2019 )

United States Court of Appeals
For the First Circuit
Nos. 17-2196, 18-1010
ROBIN BREDA,
Plaintiff, Appellant/Cross-Appellee,
v.
CELLCO PARTNERSHIP, d/b/a Verizon Wireless,
Defendant, Appellee/Cross-Appellant.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Denise J. Casper, U.S. District Judge]
Before
Torruella, Lipez, and Kayatta,
Circuit Judges.
Keith J. Keogh, with whom Keogh Law Ltd., Sergei Lemberg, and
Lemberg Law LLC were on brief, for appellant/cross-appellee.
David G. Thomas, with whom Emily H. Bryan and Greenberg
Traurig, LLP were on brief, for appellee/cross-appellant.
August 2, 2019
LIPEZ, Circuit Judge. Robin Breda sued Verizon
Wireless, claiming that its unauthorized, automated calls to her
cellular telephone violated the Telephone Consumer Protection Act.
After denying Verizon's motion to compel arbitration, the district
court granted summary judgment for Verizon, concluding that
Breda's claims failed because her telephone number was not
"assigned to a . . . cellular telephone service" within the meaning
of the relevant provision of the Act. In granting summary judgment
for Verizon, however, the district court did not consider the
hybrid nature of Breda's telephone service with Republic Wireless
and erroneously treated other facts as dispositive. Contrary to
the district court, we conclude that Breda's telephone number is
"assigned to a . . . cellular telephone service" within the meaning
of the Act. Accordingly, although we affirm the district court's
denial of Verizon's motion to compel arbitration, we reverse the
district court's grant of summary judgment in Verizon's favor.
I.
The Telephone Consumer Protection Act of 1991 ("TCPA"), 47
U.S.C. § 227, addresses the nuisance and invasion of privacy caused
by automated or prerecorded telephone calls. See Mims v. Arrow
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Fin. Servs., LLC, 565 U.S. 368, 372 (2012) (summarizing
congressional findings).1 Among its provisions, the TCPA prohibits
mak[ing] any call (other than a call made for emergency
purposes or made with the prior express consent of the
called party) using any automatic telephone dialing
system or an artificial or prerecorded voice . . . to
any telephone number assigned to a paging service,
cellular telephone service, specialized mobile radio
service, or other radio common carrier service, or any
service for which the called party is charged for the
call, unless such call is made solely to collect a debt
owed to or guaranteed by the United States[.]
47 U.S.C. § 227(b)(1)(A)(iii).2 Therefore, as relevant to this
appeal, the elements of a TCPA claim are: (1) the defendant used
an automatic dialing system or an artificial or prerecorded voice,3
1
The TCPA also applies to other forms of communication, such
as text messages. See Campbell-Ewald Co. v. Gomez, 136 S. Ct.
663, 667 (2016). For simplicity, we refer to "telephone calls"
throughout this opinion when discussing the TCPA. Calls to
"residential telephone lines" are subject to different
requirements not at issue in this case. See 47 U.S.C.
§ 227(b)(1)(B).
2The TCPA targets both "telemarketing" calls, see Mims, 565
U.S. at 372, and non-governmental debt-collection calls, Osorio v.
State Farm Bank, F.S.B., 746 F.3d 1242, 1254-55 (11th Cir. 2014);
Gager v. Dell Fin. Servs., LLC, 727 F.3d 265, 273 (3d Cir. 2013).
3
Although the TCPA defines "automatic telephone dialing
system," 47 U.S.C. § 227(a)(1), that definition has been subject
to ongoing and sometimes conflicting interpretations by the
Federal Communications Commission and the courts. See Maes v.
Charter Commc'n, 345 F. Supp. 3d 1064, 1066-70 (W.D. Wis.
2018)(describing these conflicts). However, because the use of an
automatic dialing system is not a contested issue on appeal, it
suffices for present purposes to think of an automatic dialing
system as a piece of equipment exhibiting "the capacity to dial
numbers without human intervention." Id. at 1067.
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(2) to call a telephone number assigned to a cellular telephone
service or to a service for which the called party is charged for
the call. See Levy v. Receivables Performance Mgmt., LLC, 972 F.
Supp. 2d 409, 417 (E.D.N.Y. 2013).4 That is, if the plaintiff's
telephone number is assigned to a cellular service, she does not
have to also prove that she was charged for incoming calls. See
Susinno v. Work Out World Inc., 862 F.3d 346, 349 (3d Cir. 2017).
The TCPA is a strict liability statute, see Alea London Ltd. v.
Am. Home Servs., Inc., 638 F.3d 768, 776 (11th Cir. 2011), but
4 Several courts, including the district court in this case,
have included as an element of a TCPA claim under
§ 227(b)(1)(A)(iii) that the call was made without the recipient's
prior consent. See Breda v. Cellco P'Ship, No. 16-11512-DJC, 2017
WL 5586661, at *3 (D. Mass. Nov. 17, 2017) (citing Karle v. Sw.
Credit Sys., No. 14-30058-MGM, 2015 WL 5025449, at *6 (D. Mass.
June 22, 2015)); Jones v. FMA All. Ltd., 978 F. Supp. 2d 84, 86
(D. Mass. 2013); see also Meyer v. Portfolio Recovery Assocs.,
LLC, 707 F.3d 1036, 1043 (9th Cir. 2012). However, addressing the
elements of a TCPA claim under § 227(b)(1)(A)(iii) for the first
time, we understand consent to be an affirmative defense, which
the caller has the burden to prove; lack of consent is not an
element of the called party's claim. See In the Matter of Rules
and Regulations Implementing the Tel. Consumer Prot. Act of 1991,
23 FCC Rcd. 559, ¶ 10 (2008) ("[W]e conclude that the creditor
should be responsible for demonstrating that the consumer provided
prior express consent."); Van Patten v. Vertical Fitness Grp.,
LLC, 847 F.3d 1037, 1044 n.3 (9th Cir. 2017) ("We think it plain
from the statutory language that prior express consent is an
affirmative defense, not an element of a TCPA claim . . . .").
Because consent is not an issue on appeal, our understanding that
consent is an affirmative defense does not affect our analysis.
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provides for treble damages in the case of "willful[] or knowing[]"
violations, 47 U.S.C. § 227(b)(3).
II.
The following facts are undisputed, unless otherwise noted.
Breda opened an account with Verizon Wireless ("VZW") for cellular
telephone service in 2003. VZW provided her with both a telephone
number and a telephone plan pursuant to a Customer Agreement. The
Agreement provides, in relevant part:
You and Verizon Wireless both agree to resolve disputes
only by arbitration or in smalls claims court . . . . We
also both agree that . . . the Federal Arbitration Act
applies to this agreement. Except for small claims court
cases that qualify, any dispute that in any way relates
to or arises out of this agreement or from any equipment,
products and services you receive from us . . . will be
resolved by [arbitration].
The Agreement also states that VZW treats the customer's request
to transfer the covered telephone number to another provider "as
though you asked us to cancel your Service for that number."
Breda was a VZW customer until 2015, when she switched her
telephone service to a "Wi-Fi + Cell Talk + Text Service Plan"
with Republic Wireless ("Republic"). Republic does not have direct
access to telephone numbers and must obtain them from, or "port"
them to, an entity authorized to provide numbers by the relevant
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regulatory authorities.5 Therefore, Republic "ported" Breda's
telephone number to Bandwidth.com, Inc. ("Bandwidth"), a third
party with authority to "provide" telephone numbers. Bandwidth
only has authority to provide "wireline" numbers, and Breda's
telephone number was listed by Bandwidth as a "wireline," rather
than "wireless,"6 number on Neustar, a "neutral provider of
real-time information and analytics to the Internet,
communications, . . . and marketing industries." Neu[s]tar, Inc.,
SEC Form 10-K (FY 2011),
https://www.sec.gov/Archives/edgar/data/1265888/0001193125120881
86/d233580d10k.htm (last visited July 31, 2019).7
Republic provides telephone service to its customers using a
system that "prefers" Voice over Internet Protocol ("VoIP")
5
"Porting" is the process by which an existing phone number
is transferred from one service provider to another when a customer
switches her telephone service. Porting: Keeping Your Phone Number
When You Change Providers,
https://www.fcc.gov/consumers/guides/porting-keeping-your-phone-
number-when-you-change-providers (last visited July 31, 2019).
6
Although the record does not fully illuminate this point,
we follow the parties in assuming that "wireline" and "wireless"
are the two possible designations for a telephone number on
Neustar, and that "wireless" is a designation encompassing
cellular service but not other services, such as those described
below, that use wireless internet.
7
Until 2016, Neustar was the Local Number Portability
Administrator for the United States, responsible for overseeing
telephone number porting and number portability databases. See
Neustar, Inc. v. FCC, 857 F.3d 886, 889-91 (D.C. Cir. 2017).
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technology for the transmission of calls.8 When a call is made to
Breda's telephone number, it is first received by Republic's
servers. Republic determines whether Breda's smartphone is
connected to wireless internet ("Wi-Fi"). If it is, Republic
routes the call using VoIP technology through Bandwidth, which
provides VoIP service for Republic's customers. If Breda's phone
is not connected to Wi-Fi, Republic passes the call off to a third-
party cellular service provider (either Sprint or T-Mobile), which
routes the call to Breda's phone using its cellular network. Breda
ordinarily turns off the Wi-Fi function on her phone when she
leaves her house in the morning and turns it back on when she
returns home at night. That is, if Breda remembers to turn off
the Wi-Fi function, she only receives calls through a cellular
8 VoIP "is a technology that allows [a caller] to make voice
calls using a broadband Internet connection instead of a regular
(or analog) phone line. . . . VoIP services convert [a] voice into
a digital signal that travels over the Internet. . . . [W]ireless
'hot spots' in locations such as airports, parks, and cafes allow
[a caller] to connect to the Internet and may enable [the caller]
to use VoIP service wirelessly." Voice Over Internet Protocol
(VoIP), https://www.fcc.gov/general/voice-over-internet-protocol-
voip (last visited July 31, 2019). VoIP technology "can be used
with either a telephone (mobile or land-line) or a PC [personal
computer] as the user terminal. This [functionality] gives
different modes of operation: PC to PC, PC to telephone, telephone
to PC and telephone to telephone or mobile-to-mobile, all via the
internet." Rebecca Wong, Daniel B. Garrie & Gerald S.
Levine, Voice-Over Internet Protocol - The Continuing Difficulties
in Neutrality and Privacy, 4 J. Legal Tech. Risk Mgmt. 41, 43
(2009).
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network when she is away from home. Breda pays a set monthly fee
for her telephone service, which includes unlimited calling.
Incoming calls do not reduce the number of minutes available to
her under her plan.
At some point after switching to Republic, Breda began
receiving automated calls from VZW that included a prerecorded
voice prompt announcing the calls were intended for an unrelated
person. When prompted, Breda pressed a button to indicate she was
not the intended recipient. Breda also spoke to a live VZW
representative, informed that person that she was receiving the
calls in error, asked that the calls stop, and was told they would.
However, the calls continued for a period of time.9 Republic's
records confirm that several of VZW's calls were transmitted to
Breda's phone through a cellular network.
9According to VZW, pushing the button to indicate that she
was not the intended call recipient would merely have transferred
Breda to a representative. Breda testified that she pushed the
button multiple times but may have never waited to be connected to
a representative. She was also unsure if she had reached the
representative she did talk to by pushing the button or by calling
VZW directly. VZW asserts that it called Breda because it was
trying to reach a delinquent VZW account holder who had erroneously
provided Breda's number as an alternate contact. VZW also asserts
that the representative Breda spoke with failed to immediately
stop the calls due to inadvertence.
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Based on these automated calls, Breda filed a class action
complaint alleging violations of the TCPA.10 VZW raised
arbitrability as an affirmative defense. However, in the
subsequently filed joint case management report, the parties
agreed that the matter "presently is not suitable for alternative
dispute resolution." There was no dispute that Breda was no longer
a VZW customer at the time she received the calls underlying her
TCPA claims.
After VZW moved for summary judgment, Breda filed a response
in opposition in which she stated, inter alia:
 "The number at issue is assigned to cellular
service; Ms. Breda obtained the telephone number from
a cellular service plan with Verizon Wireless before
she switched providers to Republic Wireless. At that
time, she used her same cellular telephone number to
make and receive calls. When Ms. Breda signed up for
Republic Wireless, she kept the same cellular
telephone number that Verizon assigned to her. She
continues to use that same cellular telephone number
to make and receive calls on her [smartphone]." Pl.'s
Opp'n to Summ. J., Dkt. # 66, at 2-3 (citations
omitted).
 That a particular ruling by the Federal
Communications Commission ("FCC") "supports [her]
position that her cellular telephone number initially
assigned to her by Verizon as part of her Verizon
10 The class action complaint was substituted for Breda's
original complaint bringing claims solely on her own behalf.
Because the district court fully resolved Breda's personal claims
before she filed a motion for class certification, any class claims
were mooted by the judgment for VZW. See Bais Yaakov of Spring
Valley v. ACT, Inc., 798 F.3d 46, 50-51 (1st Cir. 2015).
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cellular service is assigned to a cellular service."
Id. at 12.
VZW then filed a motion to compel arbitration and dismiss or stay
the case, contending that Breda's claims were now subject to the
Agreement's arbitration clause because she had, in her response in
opposition to summary judgment, linked her claims with the services
provided under that Agreement.
The district court denied VZW's motion to compel arbitration
but granted its motion for summary judgment. Breda timely appealed
the grant of summary judgment, and VZW timely cross-appealed the
denial of its motion to compel.11
III.
VZW contends that Breda's claims are subject to the
Agreement's arbitration provision. We review the denial of a
motion to compel arbitration de novo. Conduragis v. Prospect
Chartercare, LLC, 909 F.3d 516, 517 (1st Cir. 2018). Although the
party seeking to compel arbitration has the burden of demonstrating
that a particular claim comes within the scope of an arbitration
11 After oral argument, we invited the FCC to file an amicus
brief "addressing the meaning of: (1) 'telephone number assigned
to' and (2) 'cellular telephone service' as used in . . . 47 U.S.C.
§ 227(b)(1)(A)(iii)." Order (Feb. 4, 2019). The FCC declined our
invitation, stating, "[b]ecause the full Commission has not
previously addressed the specific factual scenario presented by
these cross-appeals, the Commission's lawyers are unable at this
time to take a position on the issues presented here." FCC Letter
(Mar. 6, 2019).
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agreement, Soto-Fonalledas v. Ritz-Carlton San Juan Hotel Spa &
Casino, 640 F.3d 471, 474 (1st Cir. 2011), we generally resolve
ambiguities in favor of arbitration, which is consistent with
federal policy, Grand Wireless, Inc. v. Verizon Wireless, Inc.,
748 F.3d 1, 7 (1st Cir. 2014).
Claims arising after the expiration of a contract containing
an arbitration provision, however, are only presumed to be subject
to arbitration if the "dispute has its real source in the
contract." Litton Fin. Printing Div. v. NLRB, 501 U.S. 190, 205
(1991). A dispute has its real source in an expired contract "only
where" the dispute
involves facts and occurrences that arose
before expiration, where an action taken after
expiration infringes a right that accrued or
vested under the agreement, or where, under
normal principles of contract interpretation,
the disputed contractual right survives
expiration of the remainder of the agreement.
United Parcel Serv., Inc. v. Unión de Tronquistas de P.R., Local
901, 426 F.3d 470, 472-73 (1st Cir. 2005) (quoting Litton, 501
U.S. at 206). If the dispute has its real source in the contract,
a court "must consider whether postexpiration arbitration of the
issue was negated expressly or by clear implication." Id. at 473.
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We readily conclude that Breda's TCPA claims do not have their
real source in her expired Agreement with VZW.12 All of the
material facts underlying her claims -- that is, all of the facts
and occurrences relating to VZW's automated calls -- occurred after
the Agreement's termination. See, e.g., Stevens-Bratton v.
TruGreen, Inc., 675 Fed. App'x 563, 568-69 (6th Cir. 2017)(finding
no presumption of arbitrability where plaintiff based her TCPA
claims on calls that occurred after the agreement expired).
Indeed, Breda's TCPA claims are entirely unrelated to the parties'
prior relationship as memorialized in the Agreement, that of
customer and telephone service provider. VZW contends it called
Breda because a current VZW customer unknown to Breda erroneously
provided her number as an alternate contact. In other words, what
happened to Breda could have happened to anyone.
Nor do Breda's statutory TCPA claims involve a contractual
right or a right that accrued or vested under the Agreement. See,
e.g., Rahmany v. T-Mobile USA Inc., 717 Fed. App'x 752, 753 (9th
Cir. 2018) (Mem.) ("The TCPA, not the Wireless Agreement, creates
and defines any alleged duty to refrain from sending an unwanted
text message."); Gamble v. New Eng. Auto Fin., Inc., 735 Fed. App'x
12VZW does not appear to challenge the district court's
conclusion that the Agreement was terminated by its own terms when
Breda switched her service to Republic.
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664, 666 (11th Cir. 2018) (noting that plaintiff's TCPA claim
"arises not from the Loan Agreement or any breach of it, but from
post-agreement conduct that allegedly violates a separate,
distinct federal law");13 see also Doe v. Princess Cruise Lines,
Ltd., 657 F.3d 1204, 1218 (11th Cir. 2011) ("The term 'arising out
of' [in standard arbitration provisions] is broad, but it is not
all encompassing. . . . [It] requires the existence of some direct
relationship between the dispute and the performance of duties
specified by the contract."). We therefore conclude that Breda's
claims are not subject to a presumption in favor of arbitrability.14
Absent the presumption, VZW does not provide any good reason
to compel arbitration. VZW candidly admits that nothing in Breda's
complaint indicates that her claims are subject to the Agreement's
arbitration provision. But it suggests that the usual post-
expiration analysis should not apply because of Breda's statements
in her opposition to summary judgment. Specifically, VZW asserts
13 VZW distinguishes Rahmany and Gamble on the basis that
Breda, unlike the plaintiffs in those cases, "inexorably linked
the agreement" to her claims. As we explain below, we reject this
characterization.
14 VZW's reliance on Mitsubishi Motors Corporation v. Soler
Chrysler-Plymouth, Inc., 473 U.S. 614 (1985), is misplaced because
that case is factually inapposite. Besides the fact that the
agreement in that case had not expired, the connection between the
suit and the agreement was clear -- both the claims and
counterclaims expressly required interpretation of the parties'
agreement containing the arbitration clause. Id. at 621-22 & n.9,
624 & n.13.
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that, in support of her main argument that her number is "assigned
to a . . . cellular telephone service," Breda "relied heavily on
th[e] fact that she obtained [her] Telephone Number from VZW and
did so as part of her VZW cellular services." In other words, VZW
contends that Breda chose "to inexorably link the products and
services she obtained from VZW to her TCPA claim[s] when attempting
to avoid summary judgment," that she must be bound to the
consequences of her choice, and that those consequences include
arbitration of her claims pursuant to the Agreement. VZW further
contends that this concept of compelling arbitration based on how
a party frames its arguments in opposition to summary judgment is
a matter of first impression in this Circuit. We need not make
new law, however, because we disagree with the factual premise
underlying VZW's argument.
We recognize that a few of Breda's statements in her
opposition to summary judgment could be read in isolation as
essentially arguing that her number was assigned to a cellular
telephone service at the time of VZW's calls because she had the
same number when she was a customer of VZW's cellular telephone
service. But, read in context, it is clear that Breda has never
made this argument. To the contrary, she has consistently argued
that her telephone number is assigned to a cellular telephone
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service because of the nature of her service with Republic.15 We
see no reason to compel the arbitration of claims entirely
unrelated to the Agreement merely because Breda made some stray
references to her prior relationship with VZW in opposing summary
judgment. For these reasons, the district court correctly denied
VZW's motion to compel, and we reject its cross-appeal.16
IV.
Breda contends that the district court erred in granting
summary judgment for VZW on her TCPA claims. We review the
district court's grant of summary judgment de novo, asking whether
the moving party -- here, VZW -- has demonstrated "that there is
no genuine issue of material fact, and that it is entitled to
judgment as a matter of law." Barry v. Moran, 661 F.3d 696, 702-03
15For example, in the introduction to her response in
opposition to VZW's motion for summary judgment, Breda stated her
argument as follows:
Undisputed facts show that [she] received Verizon's
calls on her cellular Smartphone. She pays for her
cellular telephone service for that wireless Smartphone
via Republic Wireless' "Wi-Fi + Cell Talk + Text plan."
Moreover, Verizon's robocalls were actually transmitted
to her cellular Smartphone through either Sprint or
T-Mobile's cellular network as part of her Republic
Wireless service.
Pl.'s Opp'n to Summ. J., Dkt. # 66, at 2 (emphasis in original).
16
Because we determine that the motion to compel was properly
denied, we do not address Breda's argument that VZW should be
estopped from compelling arbitration.
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(1st Cir. 2011) (citing Fed. R. Civ. P. 56(a)). The district court
concluded that Breda's TCPA claims fail as a matter of law because
her telephone number is not "assigned to a . . . cellular telephone
service" and she, undisputedly, is not charged for each incoming
call. Specifically, regarding whether her number is "assigned to
a . . . cellular telephone service," the district court
determined that Breda "was receiving VoIP services rather than
traditional cellular telephone services," and stated, "[t]he
survival of her claims, therefore, turns on whether VoIP service
may be considered cellular telephone service as a matter of law."
Breda v. Cellco P'Ship, No. 16-11512-DJC, 2017 WL 5586661, at *3
(D. Mass. Nov. 17, 2017). The district court then concluded, as
a matter of law, that "VoIP telephone service" is not "cellular
telephone service" within the meaning of the TCPA. Id. at *4. In
reaching this conclusion, the district court cited cases in which
courts determined or suggested that telephone service exclusively
using VoIP technology is distinct from "cellular telephone
service" and triggers TCPA liability only if the called party is
charged for incoming calls. See, e.g., Jones v. Experian Info.
Sols., No. 14-10218-GAO, 2016 WL 3945094, at *6-7 (D. Mass. July
19, 2016); Karle v. Sw. Credit Sys., No. 14-30058-MGM, 2015 WL
5025449, at *6 (D. Mass. June 22, 2015); Lynn v. Monarch Recovery
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Mgmt., Inc., 953 F. Supp. 2d 612, 616-17 (D. Md. 2013), aff'd, 586
Fed. App'x 103 (4th Cir. 2014).
In determining that Breda's telephone service is "VoIP
service," however, the district court did not consider the hybrid
nature of Breda's service. It is undisputed that Breda's Republic
telephone service involves a cellular component -- calls to her
telephone number can be, and are, routed over cellular networks.
Therefore, the question before us is not whether "VoIP service" is
"cellular telephone service" under § 227(b)(1)(A)(iii), but
rather, whether a hybrid service with both cellular and VoIP
components can be so considered. In answering this question, we
do not have guidance from the FCC, see supra note 11, and the
parties have not pointed us to any circuit court decisions directly
addressing a service like Breda's. But, as we explain, using the
information and guidance we do have available, we conclude that
Breda's hybrid service is meaningfully distinguishable from
exclusive VoIP service and constitutes "cellular telephone
service" within the meaning of the TCPA.
A. "Cellular Telephone Service"
As we understand the parties' positions, if not for the VoIP
component of her telephone service, the parties would agree that
Breda is receiving "cellular telephone service." Again, it is
undisputed that Republic routes certain calls to her telephone
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number over cellular networks.17 But VZW contends that the VoIP
component of Breda's service negates the cellular component for
purposes of § 227(b)(1)(A)(iii). In other words, VZW in effect
asks us to read "exclusively" into the "cellular telephone service"
provision of § 227(b)(1)(A)(iii) such that it would only cover
calls to telephone numbers assigned to an "exclusively cellular
telephone service."
We decline to read such a restriction into the statutory
language. To the contrary, because the TCPA is a consumer
protection statute, we must interpret it broadly in favor of
consumers. See Zimmerman v. Puccio, 613 F.3d 60, 71 (1st Cir.
2010) ("[C]onsumer protection statutes are construed 'liberally in
17 We reject VZW's contention that this case is like those
where courts have declined to hold a caller liable under
§ 227(b)(1)(A)(iii) because the call was made to a non-cellular
telephone number that the called party forwarded to his or her
cellphone. See, e.g., Klein v. Commerce Energy, Inc., 256 F. Supp.
3d 563, 581 (W.D. Pa. 2017); Harper v. Credit Control Servs., Inc.,
863 F. Supp. 2d 125, 127 (D. Mass. 2012). Unlike in those cases,
Breda does not unilaterally forward calls received over a landline
or through VoIP to her cellphone -- rather, her telephone service
provider directs her calls through the internet or through a
cellular network. In other words, her receipt of calls over a
cellular network is part of her telephone service. Accordingly,
this is not the type of situation the FCC was contemplating when
it stated that "a call placed to a wireline number that is then
forwarded, at the subscriber's sole discretion and request, to a
wireless number or service, does not violate the ban on autodialed
and prerecorded message calls to wireless numbers." In the Matter
of Rules and Regulations Implementing the Tel. Consumer Prot. Act
of 1991, 20 FCC Rcd. 3788, ¶ 48 (2005) (emphasis added).
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favor of consumers.'" (quoting Barnes v. Fleet Nat'l Bank, N.A.,
370 F.3d 164, 171 (1st Cir. 2004))). Construing "cellular
telephone service" to embrace a hybrid service that routes some
calls over cellular networks is consistent with the TCPA's purpose
to "ban[] . . . automated or prerecorded telephone calls . . . to
protect[] telephone consumers from [] nuisance and privacy
invasion." Pub. L. 102-243, § 2, 105 Stat. 2394 (Dec. 20, 1991).
Certainly, VZW's calls to Breda's smartphone, transmitted via
cellular networks, posed the same type of nuisance and invasion of
privacy as do calls transmitted via telephone service lacking a
VoIP component. See In the Matter of Rules and Regulations
Implementing the Tel. Consumer Prot. Act of 1991, 30 FCC Rcd. 7961,
¶ 124 (2015) (recognizing that the intrusion of privacy presented
by unwanted calls may be heightened "where the calls are received
on a phone that the consumer may carry at all times"). Further,
as a matter of common sense, we see no principled reason for
treating a service that involves the routing of calls over a
cellular network the same as a service that exclusively uses VoIP
technology for purposes of determining liability under the
"cellular telephone service" provision of the TCPA.
VZW contends that including hybrid services within the
meaning of "cellular telephone service" would render superfluous
the phrase "or any service for which the called party is charged
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for the call" in § 227(b)(1)(A)(iii). In so arguing, VZW points
to Breda's contention that her plan is "like just about every plan
on the market" to suggest that a definition of "cellular telephone
service" that includes hybrid VoIP and cellular service would
"swallow" the charged call provision. But even if Breda is correct
that hybrid VoIP and cellular services are ubiquitous, non-hybrid
telephone services relying solely on VoIP technology do exist and
could still be analyzed under the TCPA's charged call provision.
See, e.g., Baemmert v. Credit One Bank, N.A., 271 F. Supp. 3d 1043,
1046 (W.D. Wis. 2017) ("The TextMe app allowed Baemmert to use his
cell phone only when connected by Wi-Fi to the internet. If
someone called Baemmert when he had no internet connection, [his]
cell phone would not ring . . . ."). Furthermore, to the extent
hybrid services using both cellular networks and VoIP technology
are becoming more common, VZW's strict reading of "cellular
telephone service" would create a significant rent in the consumer-
protective fabric of the TCPA. We therefore conclude that the
district court erred by not considering the cellular aspect of
Breda's telephone service and holding as a matter of law that her
hybrid service was not "cellular telephone service" under the
TCPA.18
18The district court and VZW put misplaced weight on how
Bandwidth and Republic characterize themselves. Bandwidth
provides VoIP services to Republic; the fact that Bandwidth does
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B. "Assigned To"
Consideration of the statutory phrase "assigned to" does not
change our analysis. See 47 U.S.C. § 227(b)(1)(A)(iii) (TCPA
liability attaches to calls made to a telephone number "assigned
to a . . . cellular telephone service" (emphasis added)). VZW
suggests that the designation of Breda's telephone number on
Neustar as a "wireline" number -- as opposed to a "wireless" number
-- is synonymous with the "assignment" that triggers TCPA coverage.
The district court apparently took the same view, describing the
Neustar listing as "the listing of [Breda's] number as having been
assigned to a wireline VoIP service." Breda, 2017 WL 5586661, at
*3. But VZW and the district court place too much emphasis on the
Neustar listing.
The record suggests that the designation of Breda's telephone
number as "wireline" on Neustar -- which Republic's technical
product manager referred to as a "classification" -- was made by
not identify itself as a cellular telephone service provider is of
negligible import. And contrary to VZW's contention, Republic
never stated that it "is a VOIP provider and does not provide
cellular telephone service." Republic described itself as
"provid[ing] telephone service to its customers utilizing its
proprietary technology that prefers [VoIP] for the transmission of
calls to its customers." Further, contrary to the district court's
conclusion, Breda never "admit[ted]" that "she was receiving VoIP
services rather than traditional cellular telephone services."
See Breda, 2017 WL 5586661, at *3. Breda consistently alleged
that she was receiving a hybrid VoIP and cellular service that
qualified as "cellular telephone service" under the TCPA.
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Bandwidth because "numbers that Bandwidth provides or has the
ability to provide are wire line numbers." There is no clear
evidence in the record, however, that this "classification" by
Bandwidth is synonymous with the "assignment" discussed in
§ 227(b)(1)(A)(iii). In fact, Republic's technical product
manager specifically differentiated between the "classification"
of Breda's number and any "assignment," explaining that Republic
does not "have authority to change the . . . classification of [a]
number from wireless to wire line [but] do[es] take that number
that is provided to us from Bandwidth and assign it to a[]
[customer's] account."
Moreover, taking a broader view, we are unconvinced that
"assigned to" has any specific, technical meaning under the TCPA
that is determinative in this case. The FCC has simply stated
that "a telephone number is assigned to a cellular telephone
service, for purposes of the TCPA, if the number is currently being
used in connection with that service." In the Matter of Rules and
Regulations Implementing the Tel. Consumer Prot. Act of 1991, 20
FCC Rcd. 3788, ¶ 47 (2005) (emphasis added). The FCC's statement
suggests that, to determine whether a telephone number is "assigned
to a . . . cellular telephone service," we need only consider
whether the number is being used in connection with such service.
It is evident that the focus of such consideration should be on
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Republic, not Bandwidth, because Republic is the entity that
provides Breda's telephone service. Breda signed up with
Republic's "Wi-Fi + Cell Talk + Text Service Plan"; Republic
contracts with Bandwidth and with T-Mobile and Sprint to access
VoIP technology and cellular networks, respectively, for its
customers' calls; and Republic receives incoming calls to Breda's
number and routes them through VoIP or through the cellular
networks. Thus, the pertinent question is not how Bandwidth, or
any entity, "classifies" Breda's number, but whether her telephone
number is in fact "being used in connection with" a "cellular
telephone service."
We do not dispute that Bandwidth's classification of Breda's
number as "wireline" on Neustar has some meaning. The FCC has
recognized Neustar as a resource for information "that can assist
telemarketers in identifying numbers assigned to wireless
carriers." In re Rules and Regulations Implementing the Tel.
Consumer Prot. Act of 1991, 18 FCC Rcd. 14014, ¶ 170 (2003). But
the fact that Neustar is a tool that can assist compliance with
the TCPA does not mean that Neustar listings are dispositive as to
whether a telephone number is "assigned to a . . . cellular
telephone service" under the TCPA. Indeed, to the extent that the
only company associated with Breda's telephone number on Neustar
is Bandwidth, a VoIP provider, the listing does not provide the
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relevant compliance information that Breda's telephone service is
with Republic and that it has both VoIP and cellular components.
Further, calls to a "wireline" service may violate the TCPA if the
"wireline" service falls within § 227(b)(1)(A)(iii)'s catch-all
for "any service for which the called party is charged for the
call," yet the Neustar listings do not appear to provide any
information as to whether a given telephone number is associated
with a plan under which the called party is charged for incoming
calls.19
In sum, on the record before us, we conclude that Breda's
telephone number is "assigned to a . . . cellular telephone
service" within the meaning of § 227(b)(1)(A)(iii) of the TCPA.20
19 In defense of its position that Breda's telephone number
is not "assigned to a . . . cellular telephone service," VZW also
points to the fact that Republic's service "prefers" VoIP. We
understand this simply to mean that Republic will route calls over
VoIP if the called party has internet access at the time of the
call even if the called party is also in range of the available
cellular networks. This "preference," however, does not negate
the basic fact that Republic can, and does, route calls both over
VoIP and over cellular networks.
20 In her briefing, Breda heavily relies on an inapposite
footnote in a 2015 FCC order. See In the Matter of Rules and
Regulations Implementing the Tel. Consumer Prot. Act of 1991, 30
FCC Rcd. 7961, footnote 174 (2015). Footnote 174 explains that,
for purposes of exercising its statutory exemption authority, the
FCC considers "cellular telephone service" to embrace wireless
services using spectrum blocks in addition to the "Cellular
Service" spectrum block. Id. That is, the footnote suggests that
a caller can be confident that an exemption involving "cellular
telephone service" applies both to services on the "Cellular
Service" spectrum block and to functionally equivalent services on
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V.
For the foregoing reasons, we affirm the district court's
denial of VZW's motion to compel arbitration but reverse the
district court's entry of summary judgment in VZW's favor and
remand for further proceedings consistent with this opinion.
So ordered.
other spectrum blocks. Id. The footnote does not stand for the
broad proposition Breda asserts that the nature of a person's
telephone service must be assessed from the consumer's
perspective, even assuming that the footnote was binding on the
district court. See PDR Network, LLC v. Carlton & Harris
Chiropractic, Inc., 139 S. Ct. 2051, 2055-56 (2019) (describing
the "preliminary sets of questions" that must be answered before
determining that an FCC order is binding on a district court under
the Administrative Orders Review Act, 28 U.S.C. § 2342(1)).
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