APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF MASSACHUSETTS Hon. Denise J. Casper, U.S.
J. Keogh, with whom Keogh Law Ltd., Sergei Lemberg, and
Lemberg Law LLC were on brief, for appellant/cross-appellee.
G. Thomas, with whom Emily H. Bryan and Greenberg Traurig,
LLP were on brief, for appellee/cross-appellant.
Torruella, Lipez, and Kayatta, Circuit Judges.
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
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 Fin. Servs., LLC, 565 U.S. 368,
372 (2012) (summarizing congressional
findings). 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). 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, 
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). 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 provides for treble
damages in the case of "willful or knowing"
violations, 47 U.S.C. § 227(b)(3).
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].
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."
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 regulatory
authorities. 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,
" 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),
86/d233580d10k.htm (last visited July 31,
provides telephone service to its customers using a system
that "prefers" Voice over Internet Protocol
("VoIP") technology for the transmission of
calls. 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 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.
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. Republic's records confirm that
several of VZW's calls were transmitted to Breda's
phone through a cellular network.
on these automated calls, Breda filed a class action
complaint alleging violations of the TCPA. 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.
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
.• 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 cellular
service is assigned ...