Denied! Federal court won't let telemarketer redefine 'called party'
- Peter Schneider
- Aug 28
- 8 min read
Telemarketers are pushing three legal strategies:
The Telephone Consumer Protection Act's residential phone lines doesn't apply to cell phones.
The Telephone Consumer Protection Act's residential phone lines doesn't apply to text messages.
Telemarketers can call anyone's phone number so long as the telemarketer 'reasonably believes' they are intending to call the person who consented to the calls. Even if that person has no connection to the actual subscriber.
They are all dangerous in their own way, but if they achieve #3, all telemarketers have to do to evade liability for unwanted phone calls is buy a wink wink nod nod fake opt in, then dial away. Then when hailed into court and the fakeness of the opt-in is revealed, claim, well I didn't know it was fake! and jet.
They have pushed their agenda on all three for years with almost universal squat to show for it, and this was their fate yet again in Massarello v. Power Home Remodeling Grp., LLC, No. 24-cv-12480, 2025 LX 310689 (E.D. Mich. Aug. 27, 2025).
[O]ne of the single most important open issues under the TCPA is the identity of the “called party” for purposes of the TCPA’s express consent rules. - Eric Troutman
As always, the background. Mr. James Massarello sued Power Home Remodeling LLC for unwanted calls featuring artificial or prerecorded voice. Despite subscribing to the called phone number for over 10 years, Power Home Remodeling just happened to call the 'wrong number' trying to reach someone else.
Defendant now moves to dismiss, arguing that Plaintiff in this case is not "the called party" as defined by the TCPA and has no claim here because Defendant had consent from the calls' intended recipient and only mistakenly reached Plaintiff.
The TCPA generally makes it unlawful to use artificial or prerecorded voice to without the prior express consent of the called party is charged for the call. These days most phone subscribers aren't charged per minute, but courts have come to interpret this as the telephone number's subscriber.
Telemarketers want to fight over this the called party is charged for the call, claiming this is the person they intended to call.
The key issue here is whether "the called party," which is not defined by statute, means—particularly in the context of wrong-number cases like this one— the intended or the actual recipient of a call. If, as Defendant asserts, the meaning applies only to a call's intended recipient [but the intended recipient for sure isn't charged for the call now are they], then Plaintiff cannot state a claim where he acknowledges that Defendant was trying to reach someone else. In that case, the called party would be the individual Defendant purportedly had consent to call, and there would be no liability to Plaintiff under 47 U.S.C. § 227(b)(1)(iii).1 But if the language applies to an actual recipient, then Defendant would be liable under the facts as pled for making prerecorded calls to Plaintiff's phone without his consent. Stated differently, the Court must decide whether the TCPA provides for strict liability when a Defendant mistakenly calls a wrong number without consent. As an initial matter, Defendant is correct that the Court should no longer defer to the FCC's interpretation of the relevant language. Specifically, following Loper Bright Enters. v. Raimondo, 603 U.S. 369, 144 (2024), the Court must engage in independent statutory review. No longer are agency decisions to be afforded deference; instead, when a statute is ambiguous, "courts use every tool at their disposal to determine the best reading of the statute." Courts are to follow the traditional process of statutory interpretation, giving respect to the views of the Executive Branch, but not "delegating ultimate interpretive authority to agencies[.]" As always, the Court begins with the statute's plain language. See Lopez v. Garland, 116 F.4th 1032, 1043 (9th Cir. 2024) ("Against this background, and pursuant to Loper . . ., we proceed to construe the statute independently. We begin, as always, with the plain language of the statute. If the plain language is clear, our inquiry is complete.") See United States v. Bricker, 135 F.4th 427, 443 (6th Cir. 2025) (following Loper, "the determinative question is whether [the Sentencing Commission's policy statement] comports with the plain language of [the statute]"). The Court has followed this guide here by interpreting the plain language of 47 U.S.C. § 227(b)(1)(iii). The Court disagrees with the Defendant's proposed interpretation; therefore, Plaintiff has stated a plausible claim for relief. And the Court's holding is consistent with those of the Seventh, Ninth, and Eleventh Circuits, which have taken on this issue already, which are all supported by public policy and practical considerations. [This called party nonsense telemarketers are pushing has a strong headwind because their argument doesn't make sense and it has largely been rejected by courts] First, it is highly relevant that the statute at no point uses the term "intended recipient" or any terminology indicating the intent of the caller is relevant. This fact was persuasive to the Ninth Circuit in N.L. v. Credit One Bank, N.A., 960 F.3d 1164, 1168 (9th Cir. 2020). [this telemarketer argument is particularly weak in the ninth circuit because of N.L.] It is persuasive to the Court as well. Next, where § 227(b)(1) allows liability for any nonconsensual robocall "if the recipient is within the United States," and since a call must be made to impose such liability, the statutory language supports that the called party is the person who actually received the call. See N.L., 960 F.3d at 1168. Indeed, the term called party would not be written in the past tense unless intended to refer to a person to whom a call has been made. See id. The statute also notes an exemption for those who are called with prior express consent. 47 U.S.C. § 227 (b)(1)(A). The Court here, like the Ninth Circuit in N.L., does not think it would make sense to apply the term called party to a third person who could not qualify for this exemption. N.L. [that pretty concisely sums up the problem with their argument], 960 F.3d at 1168 ("it would be odd if 'called party' referred to some third person external to the potentially actionable communication, i.e., someone whom the caller had not in fact called, but who had previously given consent to be called"). Further, the statute notes that it applies to "any service for which the called party is charged for the call." § 227 (b)(1)(A)(iii). This suggests that the called party cannot be some intended but unknown individual who never received "the call" in a given case. See N.L., 960 F.3d at 1168 ("A 'called party' that is 'charged for the call' cannot be the 'intended' but never-called person who had previously given consent."); see also id. at 1168-69. The Seventh Circuit applied similar reasoning in Soppet v. Enhanced Recovery Co., LLC, 679 F.3d 637 (7th Cir. 2012), to conclude that the called party "means the person subscribing to the called number at the time the call is made." Id. at 639-43. And in Osorio v. State Farm Bank, F.S.B., 746 F.3d 1242 (11th Cir. 2014), the Eleventh Circuit adopted Soppet's reasoning and rejected the defendant's argument that called party meant a call's intended recipient. To the extent Defendant argues that Plaintiff's interpretation, and the resultant imposition of strict liability for mistakenly calling wrong numbers, would be absurd, the Court disagrees. Critically, the Seventh Circuit already rejected this very same argument (as applied to reassigned numbers) in Soppet, 679 F.3d at 641-43. And Congress has amended the statute numerous times over its history, most recently in 2019, but at no time has it added language to support the relevance of the caller's intent (other than allowing treble damages for knowing or willful violations) or any exemption to liability when mistakenly calling a wrong (or reassigned) number. The Court ultimately concludes that Congress intended, as consistent with the statute's text and purpose, to impose strict liability for nonconsented-to robocalls, even when innocently made to a wrong or reassigned number. See Dickson v. Direct Energy, LP, 69 F.4th 338, 341 (6th Cir. 2023) ("The TCPA is the product of public outrage over abusive telephone marketing practices," and "Congress thus enacted the TCPA with individual privacy interests among its primary concerns."); N.L., 960 F.3d at 1169-71 ("In its findings supporting the TCPA, Congress aimed to strike a balance between individuals' privacy rights, public safety interests, and commercial freedoms of speech in a way that protects the privacy of individuals and permits legitimate telemarketing practices. . . . In all events, whether [the defendant]'s 'intended recipient' rule reflects the better balancing of competing interests is not for us to decide. What matters here is the balance that the text of the TCPA most naturally reflects. And given the 'called party' language that Congress used in the TCPA, we hold that the district court's instruction complied with the statute.") (cleaned up); Soppet, 679 F.3d at 641-43 (Courts may make "modest adjustments to texts that do not parse," but "[w]hen a text can be applied as written, a court ought not revise it by declaring the legislative decision 'absurd.'" Here, the defendant's interpretation "would expose new subscribers to unwanted calls and unjustified expense. Congress might have thought the current approach [Plaintiff's interpretation, here] preferable, as a safeguard of persons assigned to recycled numbers, even though this protection comes at a cost to bill collectors."). Further, Plaintiff's interpretation would not impose, as Defendant claims, "massive liability on callers of wrong numbers." Rather, 47 USCS § 227 imposes a fine of $500, or the actual monetary damages, on a caller who uses automatic dialers to reach numbers without prior express consent. §227(b)(1)(A). And as Soppet points out, there are many practical ways to avoid liability in wrong- or reassigned-number cases. Soppet, 679 F.3d 637 at 642. Next, Defendant's reliance on Leyse v. Bank of Am. Nat'l Ass'n, 804 F.3d 316 (3d Cir. 2015), is unavailing. In Leyse, the Third Circuit determined that "t]he caller may invoke the consent of the 'called party' as a defense even if the plaintiff is someone other than the 'called party.'" "Thus, if [the plaintiff's roommate] were the 'called party' by virtue of being the intended recipient of the call, her consent to receive robocalls would shield [the defendant] from any suit brought by [the plaintiff]. . . . On the other hand, if [the plaintiff] w[as] the 'called party' despite being an unintended recipient, it is undisputed that he would have statutory standing . . . ." Id. The Third Circuit thus contemplated a defense under the TCPA when the defendant has consent from a call's intended recipient, at least under certain circumstances.
So yes consumers won again, but telemarketers will never give up bringing the same nonsense to court, and consumers must completely understand this argument and shut it down every time.
Got a Case Like This?
If you’ve had similar problems with telemarketers, debt collectors, or bankruptcy-related harassment, we might feature your story in a future blog post. Email your situation or legal filing to peter@nwdebtresolution.com or nathen@nwdebtresolution.com.
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I handle TCPA lawsuits in Washington State and Oregon, and may be able to help.
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Note: The opinions in this blog are mine (Peter Schneider) and do not count as legal advice. If you're thinking of suing over illegal robocalls or Do Not Call list violations, contact me for a legal consultation.
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