Gurzi v. Penn Credit, Corp.

• Decision Date: 30 March 2020
• Docket Number: Case No. 6:19-cv-823-Orl-31EJK
• Citation: 449 F.Supp.3d 1294
• Parties: Angela GURZI, Plaintiff, v. PENN CREDIT, CORPORATION, Defendant.
• Court: U.S. District Court — Middle District of Florida

449 F.Supp.3d 1294

Angela GURZI, Plaintiff,

v.PENN CREDIT, CORPORATION, Defendant.

Case No. 6:19-cv-823-Orl-31EJK

United States District Court, M.D. Florida, Orlando Division.

Signed March 30, 2020

Alexander H. Burke, Burke Law Offices, LLC, Larry P. Smith, David M. Marco, SmithMarco, PC, Chicago, IL, Andrew Charles Wilson, Dickinson & Gibbons, P.A., Sarasota, FL, for Plaintiff.

Charles James McHale, Jr., Dale Thomas Golden, Golden Scaz Gagain, PLLC, Tampa, FL, for Defendant.

ORDER

GREGORY A. PRESNELL, UNITED STATES DISTRICT JUDGE

This matter comes before the Court without a hearing on the Motion for Summary Judgment (Doc. 35) filed by the Defendant, Penn Credit Corporation ("Penn Credit"), the response (Doc. 52) filed by the Plaintiff, Angela Gurzi, and Penn Credit's reply (Doc. 53). In resolving these motions, the Court has considered the notices of supplemental authority (Docs. 40, 56) filed by both parties and Penn Credit's response thereto (Doc. 58).

I. Background

Gurzi is suing Penn Credit, a debt collection agency, for violations of the Telephone Consumer Protection Act ("TCPA"), 47 U.S.C. § 227. As part of its debt collection practice, Penn Credit contracted with VoApps, Inc. ("VoApps") to deliver voicemail messages through VoApps' "unique delivery technology," which is known as DirectDROP Voicemail ("DDVM"). (Doc. 35 at 2). Specifically, VoApps' DDVM technology delivers a prerecorded message to a targeted individual's voicemail platform without directly dialing the target's cell phone number or otherwise causing her handheld device to ring. (See id. ). Instead, using the target's cell phone number as an identifier, the technology "drops" a prerecorded message directly into the target's voicemail platform, which causes her to receive a message-waiting notification as though she received a normal voicemail. (See David King Decl., Doc. 35-1, ¶¶ 26, 30; see also Angela Gurzi Decl., Doc. 52-1, ¶ 6).

In other words, the DDVM technology essentially provides VoApps customers with a backdoor way to deliver prerecorded voicemail messages to a target's cellular device without directly using the cellular network.

When describing how the technology operates, David King, the original founder of VoApps, stated:

The [adaptive signaling technology ("Adapti-Sig") ] that delivers DDVM bypasses the traditional way of leaving voicemail messages for consumers. Instead of a call being made from Adapti-Sig to a cellular handset, the technology only makes a call between the Adapti-Sig servers and the servers comprising the voicemail service provider's voicemail platform, each of which are owned by business operators. This call is a landline-to-landline connection, a business-to-business connection that VoApps pays for at business class rates ....

DDVM does not access any part of the RAN¹ portion of the mobile telephone network, which is required to connect to or communicate with a cell phone. Instead, using the patented technology, DDVM establishes only a landline connection between two business class numbers for which VoApps pays business class rates. Once that connection is established, the message is deposited into the voicemail service provider's platform for the consumer to retrieve and listen to at the consumer's convenience, should he or she elect to do so.

(David King Decl., Doc. 35-1, ¶¶ 28, 30(b)).

On April 30, 2019, Gurzi filed her Class Action Complaint (Doc. 1). She alleges that Penn Credit violated the TPCA by placing automated calls to the class members' cellular telephones using its predictive dialer and/or prerecorded or artificial voice without the consent of the called party. (Doc. 1 at 4). By way of the instant motion, Penn Credit argues that its use of VoApps' DDVM technology does not fall under the TCPA.

II. Standard of Review

Courts may grant summary judgment "[w]hen the only question a court must decide is a question of law." Saregama India Ltd. v. Mosley , 635 F.3d 1284, 1290 (11th Cir. 2011). A party is entitled to summary judgment when the party can show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56. Which facts are material depends on the substantive law applicable to the case. Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The moving party bears the burden of showing that no genuine issue of material fact exists. Clark v. Coats & Clark, Inc. , 929 F.2d 604, 608 (11th Cir. 1991). A court "must draw all reasonable inferences in favor of the nonmoving party, and it may not make credibility determinations or weigh the evidence." Hinson v. Clinch Cty., Ga. Bd. of Educ. , 231 F.3d 821, 826–27 (11th Cir. 2000) (quoting Reeves v. Sanderson Plumbing Prods., Inc. , 530 U.S. 133, 150, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000) ).

When a party moving for summary judgment points out an absence of evidence on a dispositive issue for which the nonmoving party bears the burden of proof at trial, the nonmoving party must "go beyond the pleadings and by her own affidavits, or by the depositions, answers to interrogatories, and admissions on file, designate specific facts showing that there is a genuine issue for trial." Celotex Corp. v. Catrett , 477 U.S. 317, 324–25, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (internal quotations and citation omitted). Thereafter, summary judgment is mandated against the nonmoving party who fails to make a showing sufficient to establish a genuine issue of fact for trial. Id. at 322, 324–25, 106 S.Ct. 2548. The party opposing a motion for summary judgment must rely on more than conclusory statements or allegations unsupported by facts. Evers v. Gen. Motors Corp. , 770 F.2d 984, 986 (11th Cir. 1985) ("[C]onclusory allegations without specific supporting facts have no probative value.").

III. Analysis

The TCPA prohibits, in pertinent part, the making of "any call ... using any automatic telephone dialing system or an artificial or prerecorded voice" to "any telephone number assigned to a ... cellular telephone service" without the prior express consent of the called party. 47 U.S.C. § 227(b)(1)(A)(iii). "To state a claim under the TCPA for calls made to a cellular phone, a plaintiff must allege that: (1) a call was made to a cell or wireless phone, (2) by the use of any automatic dialing system or an artificial or prerecorded voice, and (3) without prior express consent of the called party." Augustin v. Santander Consumer USA, Inc. , 43 F. Supp. 3d 1251, 1253 (M.D. Fla. 2012) (citations omitted).

Penn Credit's primary argument is that it did not call a "number assigned to a ... cellular telephone service."² Specifically, Penn Credit alleges that "the message delivered on behalf of Penn Credit was delivered by landline—not cellular—service" and, therefore, Gurzi's TCPA claim must fail "based on the plain language of the statute."³ (Doc. 35 at 4–5).

There is a presumption that, in drafting a statute, Congress said what it meant and meant what it said. Am. Bankers Ins. Grp. v. United States, 408 F.3d 1328, 1332 (11th Cir. 2005). Indeed, "[t]he first rule in statutory construction is to determine whether the language at issue has a plain and unambiguous meaning with regard to the particular dispute." Shotz v. City of Plantation, Fla., 344 F.3d 1161, 1167 (11th Cir. 2003) (internal quotations and citation omitted). Words carry their ordinary meaning, unless otherwise defined. Am. Bankers Ins. Grp., 408 F.3d at 1332. If Congress has used clear statutory language, a court need not consider extrinsic materials, such as legislative history, and certainly should not derive from such materials a meaning that is inconsistent with the statute's plain meaning.

Shotz, 344 F.3d at 1167. The only exception is that "courts may reach results inconsistent with the plain meaning of a statute ‘if giving the words of a statute their plain and ordinary meaning produces a result that is not just unwise but is clearly absurd.’ " CBS Inc. v. PrimeTime 24 Joint Venture, 245 F.3d 1217, 1228 (11th Cir. 2001) (citation omitted).

Here, Penn Credit's use of direct-to-voicemail messages falls within the plain language of the TCPA. In an attempt to elevate form over substance, Penn Credit urges the Court to examine the phrase "any telephone number assigned to a ... cellular telephone service" in isolation.⁴ But, the Court cannot consider that phrase in isolation; rather, it must review "the language itself, the specific context in which that language is used, and the broader context of the statute as a whole." SEC v. Levin , 849 F.3d 995, 1003 (11th Cir. 2017) ("To determine the plain meaning of a statute or regulation, we do not look at one word or term in isolation, but rather look to the entire statutory or regulatory context.") (citations omitted).

Courts (including this one) have consistently held that calls resulting in voicemail messages are subject to the TCPA. See Picton v. Greenway Chrysler-Jeep-Dodge, Inc. , No. 6:19-CV-196-ORL-31, 2019 WL 2567971 (M.D. Fla. June 21, 2019) (collecting cases); Saunders v. Dyck O'Neal, Inc. , 319 F. Supp. 3d 907, 909–10 (W.D. Mich. 2018) (collecting cases). Additionally, the FCC has affirmed that "a telephone number is assigned to a cellular telephone service, for the purposes of the TCPA, if the number is currently being used in connection with that service." In re Rules & Regulations Implementing the Tel. Consumer Prot. Act of 1991 , 20 FCC Rcd. 3788, 3807 (2005). However, to better understand what Congress meant when it used the phrase "any telephone number assigned to a ... cellular telephone service," it is necessary to consider how such a number is "called."

The TCPA does not define "call;" therefore, the term must be interpreted based on its ordinary meaning. In Satterfield v. Simon & Schuster, Inc. , 569 F.3d 946 (9th Cir. 2009), the Ninth Circuit analyzed the "ordinary, contemporary and common meaning of the verb ‘to call’ " and determined that "cal...