Telephone Science Corporation v. Asset Recovery Solutions, LLC
MEMORANDUM Opinion and Order Signed by the Honorable Amy J. St. Eve on 1/5/2017:Mailed notice(kef, )
IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
ASSET RECOVERY SOLUTIONS, LLC,
MEMORANDUM OPINION AND ORDER
AMY J. ST. EVE, District Court Judge:
The Court previously granted Defendant Asset Recovery Solutions, LLC’s (“ARS”) Rule
12(b)(6) motion to dismiss the Second Amended Complaint of Plaintiff Telephone Science
Corporation (“TSC”), with prejudice, for failure to satisfy the “zone-of-interests” test under 47
U.S.C. § 227(b), the Telephone Consumer Protection Act (“TCPA”). (R.127, the “Opinion”)).1
The Court entered judgment on the basis of the Opinion. (R.128). TSC now moves the Court
for an order: (i) altering its Opinion to dismiss the Second Amended Complaint without
prejudice pursuant to Federal Rule of Civil Procedure 59(e); and (ii) granting TSC leave to file
an amended complaint pursuant to Federal Rule of Civil Procedure 15(a)(2). (R.129). For the
reasons set forth below, the Court denies TSC’s motion.
In addition, the Court denied ARS’ Rule 12(b)(1) motion to dismiss for lack of Article III standing, and denied as
moot ARS’ Rule 15 motion to strike 297 claims added without leave of the Court. (Id.). TSC misreads the Opinion
in arguing that “the Court rejected virtually every argument advanced by ARS in its Rule 12(b)(6) motion to
dismiss” apart from its “zone of interests” argument. (R.138, Reply Br. at 3). To the contrary, the Court explicitly
stated that it did not reach opinion on ARS’ remaining arguments in favor of Rule 12(b)(6) dismissal. (R.127,
Opinion at 14, 33).
The Court assumes familiarity with the factual and procedural background of this action
as set forth in detail in the Opinion, and does not recite it here. For purposes of analyzing the
present motion, however, the Court recites the following facts.
The Nomorobo Call-Blocking Service
TSC operates a service called “Nomorobo,” designed to help consumers avoid incoming
computerized telephone calls known as “robocalls” – calls made with either an automatic
telephone dialing system (“ATDS”) or with a prerecorded or artificial voice. (R.129-3, Proposed
Third Am. Compl. ¶¶ 5-6). To date, Nomorobo has helped consumers “avoid over 122 million
unwanted robocalls.” (Id. ¶ 9). “In order to provide the Nomorobo service to consumers, TSC
maintains a ‘honeypot’ group of telephone numbers, from which TSC is able to gather data
related to inbound calls.” (Id. ¶ 10). Nomorobo analyzes calls placed to TSC’s honeypot
numbers using a specialized algorithm, enabling it to “detect high frequency robocalling patterns
and distinguish between calls placed by robocallers and calls placed by non-robocallers.” (Id. ¶
14). Then, using simultaneous ring technology, Nomorobo either blocks or allows an end-user
call based on its data analysis. (R.127, Opinion at 2). Individuals and businesses subscribe to
Nomorobo’s call-blocking services for a fee. (Id.).
According to TSC, around March 2014, ARS began calling telephone numbers in the
TSC honeypot (“TSC Numbers”) using a predictive dialer. (R.129-3, Proposed Third Am.
Compl. ¶¶ 31-37). “Each TSC Number is assigned to a voice over Internet protocol (“VoIP”)
telephone service that assesses a monthly per-line charge for each TSC Number.” (Id. ¶ 40).
The VoIP service provider, Twilio, Inc. (“Twilio”), also assesses a per-minute charge for each
inbound call that TSC answers. (Id. ¶ 41). TSC alleged that, between March 2014 and February
2016, ARS placed approximately 12,240 robocalls to TSC Numbers – 747 of which TSC
answered. (Id. ¶¶ 49-53). TSC, thus, sought relief under the TCPA “based on past and future
ARS robocalls to TSC Numbers, which TSC answered (or will answer) and for which TSC has
incurred (or will incur) per-minute charges.” (R.129-3, Proposed Third Am. Compl. ¶ 54). In
particular, TSC brought suit under 47 U.S.C. § 227(b)(1)(A)(iii), alleging that “ARS violated
[this provision] on multiple and separate occasions by using an ATDS to call TSC at a telephone
number assigned to a service for which TSC is charged for the call without TSC’s prior express
consent.” (Id. ¶ 82).
The Opinion, in relevant part, analyzed whether TSC’s interests fell within Section
227(b)’s protected zone of interests, entitling TSC to pursue its claims as a matter of statutory
standing. (R.127, Opinion at 14-33). In conducting this analysis, the Court first examined
Supreme Court precedent, including Lexmark Int’l Inc. v. Static Control Components, Inc., 134
S.Ct. 1377 (2014), to conclude that the zone-of-interest limitation applied to the TCPA. (Id. at
15-19). This conclusion negated TSC’s related arguments that (i) statutory standing under the
TCPA was commensurate with Article III standing, and (ii) the TCPA contemplated generalized
“citizen-suit” protection. (Id.). The Court then turned to the task of (i) discerning the interests
sought to be protected by the statute at issue, and (ii) inquiring whether TSC’s interests were
among them. (Id. at 20-33 (citing Nat’l Credit Union Admin. v. First Nat’l Bank & Trust Co.,
522 U.S. 479, 492 (1998); Air Courier Conference of Am. v. Am. Postal Workers Union AFLCIO, 498 U.S. 517, 524 (1991)).
After reviewing the statutory text and explicit Congressional findings, as reinforced by
legislative history and FCC interpretation, the Court read 47 U.S.C. § 227(b)(1)(A)(iii) “as
guarding against the receipt of, and payment for, unwelcome robocalls[,]” particularly those
which “threaten public safety and inappropriately shift marketing costs from sellers to
consumers.” (Id. at 21, 33). Ultimately, after reviewing the related provisions of Section
227(b)—including 47 U.S.C. §§ 227(b)(2)(C) (recognizing “the interest of the privacy rights this
section is intended to protect”)—the Court discerned “several interests protected under 47 U.S.C.
§ 227(b)(1)(A)(iii), including individual privacy rights, public safety interests, and interstate
commerce.” (Id. at 22-25).
The Court then held that TSC’s interests fell outside of this zone of interests. (Id. at 2533). In particular, the Court observed that “the sole reason TSC subscribes to ‘thousands’ of
honeypot numbers is to gather a ‘large quantity’ of data in order to ‘detect high frequency
robocalling patterns’ and to ‘distinguish’ between callers for its Nomorobo customer-service
offerings.” (Id. at 29). Thus, “instead of being ‘unwanted and unwelcome,’ robocalls to TSC
Numbers provide[d] the analytical basis on which the Nomorobo service operates.” (Id.). In
addition, TSC’s alleged damages—that is, the monetary harm it suffered when it began to answer
known robocalls—were “not of the vexatious and intrusive nuisance nature sought to be
redressed by Congress in enacting the TCPA, but rather [were] indirect, economic, and inherent
to [its] business.” (Id. at 29-30 (citing Cellco P’Ship v. Wilcrest Health Care Mgmt., No. CIV.A.
09-3534 MLC, 2012 WL 1638056, at *8-9 (D.N.J. May 8, 2012)). Moreover, “even after
amending its complaint twice, TSC d[id] not explain how ARS robocalls to its honeypot
numbers—as opposed to its customers’ numbers—threaten public safety or impede interstate
commerce.” (Id. at 30-31). In so holding, the Court largely agreed with ARS’ argument that
Section 227(b)(1)(A)(iii) does not protect a telecommunications service provider interested in
commercial data collection. (Id. at 15, 26 (citing R.85, Rule 12(b)(6) Opening Br. at 6-10 (citing
Lexmark and Cellco)).
Prior to its March 2016 dismissal motion, ARS had made this argument in two previous
Rule 12(b)(6) motions – one filed in August 2015, and another filed in October 2015. (R.17-1,
August 2015 Opening Br. at 3-6 (citing Lexmark and Cellco); R.46, October 2015 Opening Br. at
6-9 (citing Lexmark and Cellco)). Within two days of the initial filing, TSC had filed an
amended complaint “intended to address some of the deficiencies that [ARS] alleged existed in
the complaint.” (R.43-1, August 2015 Hearing Tr. at 2-3; R.26; R.27 (“By filing a first amended
complaint, Plaintiff seeks to amicably address the alleged pleading deficiencies that Defendant
identified in its recently filed motion to stay and motion to dismiss”)). Accordingly, the Court
denied the Rule 12(b)(6) motion as moot. (R.28). Following limited jurisdictional discovery,
ARS renewed its Rule 12(b)(6) motion as to the amended complaint, and filed a Rule 12(b)(1)
motion. (R.45, R.47). With respect to ARS’ recycled argument on statutory standing, TSC did
not address either Lexmark or Cellco in any substance. (R.52, October 2015 Response Br.).2
Before reaching a disposition on this motion, however, the Court granted ARS’ pending motion
to stay the proceedings pending the Supreme Court’s decision in Spokeo, Inc. v. Robins, 742 F.3d
409 (9th Cir. 2014), cert. granted, 135 S.Ct. 1892 (U.S. Apr. 27, 2015) (No. 13-1339). (R.70).
In light of the stay, the Court dismissed ARS’ pending Rule 12 motions without prejudice to
refile after having the Supreme Court’s guidance in Spokeo. (Id.). Thereafter, TSC moved the
Court “to enter an order lifting the stay in this case, granting TSC leave to drop with prejudice its
In particular, TSC made no mention of Lexmark, and misread Cellco to argue, “According to [that] court, the
plaintiff, a business, was not the ‘intended recipient’ of the defendant’s call and, therefore, was outside the TCPA’s
intended ‘zone of interests.’” (R.52, Response Br. at 13-14). To the contrary, the Cellco court recognized that, even
construing Verizon and OnStar as the “called party” under the TCPA, “it is clear from an examination of the
legislative history and case law interpreting the TCPA that Plaintiffs do not fall within the zone of interests protected
by the statute for purposes of prudential standing.” See Cellco, 2012 WL 1638056, at *6-7.
claims based on unanswered calls[.]” (R.72). The Court granted TSC’s motion, ordering TSC to
file an amended complaint. (R.75; see also R.93-1, Jan. 2016 Hearing Tr. at 4). On February 9,
2016, TSC filed its Second Amended Complaint (R.77), which—upon motion—the Court
dismissed with prejudice. (R.84, R.127).
TSC’s Supplemental Allegations
TSC now seeks the opportunity to cure the deficiencies identified in the Opinion. In
particular, TSC offers the following supplemental allegations by way of a Proposed Third
Amended Complaint, as supported by the declaration of TSC’s founder, Aaron Foss:
1. When TSC initially acquires telephone numbers for the TSC “honeypot,” the numbers
are considered “dirty,” meaning they already are receiving calls from various sources,
including robocallers and non-robocallers. (R.129-3, Proposed Third Am. Compl. ¶
2. “Over time, the Nomorobo service results in the ‘dirty’ numbers becoming
‘cleansed,’ meaning they are no longer receiving calls from robocallers and nonrobocallers.” (Id. ¶ 16)
3. TSC is able to return the “clean” numbers to Twilio, “or otherwise release them, for
use by the public.” (Id. ¶ 17)
4. Upon doing so, TSC no longer pays a monthly per-line service charge for the “clean”
number released by TSC. (Id. ¶ 19)
5. Once TSC has identified a telephone number as one that is placing robocalls to
numbers in the TSC “honeypot,” TSC no longer needs to gather data from continued
calls by that number. Instead, continued calls from these numbers “are unwanted and
a nuisance, as they prevent the TSC telephone numbers from becoming ‘cleansed.’”
(Id. ¶¶ 21-22)
6. Such continued calls adversely affect TSC’s business interests in acquiring new
telephone numbers for its “honeypot.” These calls also adversely affect TSC’s ability
to return “clean” telephone numbers to Twilio “or [to] otherwise release them for use
by the public” and, therefore, adversely affect interstate commerce. (Id. ¶¶ 23-26).
7. Each ARS robocall at issue “was placed after TSC had identified the ARS telephone
number was one from which robocalls were being placed.” Thus, each one “was
unwanted and a nuisance because TSC had no need to gather data from that call, and
the call contributed to the TSC telephone number(s) remaining ‘dirty.’” (Id. ¶¶ 5657).
Another court in this District has described TSC’s business model as follows:
Twilio places all numbers that it purchases from larger phone companies into a virtual
“holding tank,” where the number of calls to that number is recorded for a period of time
prior to assigning any number to a customer. Twilio wants to only assign phone numbers
that are not receiving a lot of calls to their customers. Numbers that do not receive any
calls during the period of time in the “holding tank” are considered “clean” and are
assigned to Twilio’s customers. Numbers that receive a lot of calls during the time
period in the “holding tank” are considered “dirty” and are not assigned to Twilio’s
customers. TSC buys Twilio’s “dirty” phone numbers for use in its honeypot. TSC uses
proprietary algorithms and source code to operate Nomorobo and its honeypot. TSC
analyzes its honeypot in order to detect high frequency robocalling patterns.
See Telephone Sci. Corp. v. Trading Advantage, 1:14-cv-04369, Dkt. No. 81 (Feb. 17, 2015)
(Martin, J.) (citing R.72-2 (“Disclosure with Respect to Subject Phone Numbers Subscribed to
by Telephone Science Corporation”)); see also R.85, Rule 12(b)(6) Opening Br. at 2-3 (noting
Rule 59(e) permits parties to file, within twenty-eight days of the entry of judgment, a
motion to alter or amend the judgment. See Fed.R.Civ.P. 59(e). Motions under Rule 59(e) serve
the limited function of allowing the Court to correct manifest errors of law or fact or to consider
newly discovered material evidence. See Burritt v. Ditlefsen, 807 F.3d 239, 252-53 (7th Cir.
2015). Rule 59(e) “does not provide a vehicle for a party to undo its own procedural failures” or
“to introduce new evidence or advance arguments that could and should have been presented to
the district court prior to the judgment.” Cincinnati Life Ins. Co. v. Beyrer, 722 F.3d 939, 954
(7th Cir. 2013) (citation and quotation omitted). District courts have broad discretion in
determining Rule 59(e) motions. See Burritt, 807 F.3d at 253.
If a district court “enter[s] judgment prematurely at the same time it dismisses the
complaint that would be amended,” it must “still provide some reason—futility, undue delay,
undue prejudice, or bad faith—for denying leave to amend” under Rule 15(a)(2). Runnion ex rel.
Runnion v. Girl Scouts of Greater Chicago & Nw. Indiana, 786 F.3d 510, 522 (7th Cir. 2015).
In the Seventh Circuit, a “liberal policy of amendment” applies with respect to motions for leave
to amend filed after a “premature” entry of judgment. Id. at 520-21. “Generally, denials of leave
to amend are reviewed for abuse of discretion. But when the basis for denial is futility, [courts]
apply the legal sufficiency standard of Rule 12(b)(6) to determine whether the proposed
amended complaint fails to state a claim.” Id. at 524.
The Entry of Judgment
During the course of this litigation, TSC filed an amended complaint intended to address
the “alleged pleading deficiencies that [ARS] identified” in its initial Rule 12(b)(6) motion to
dismiss. (R.27). TSC then filed two briefs responding to ARS’ subsequent Rule 12(b)(6)
motions to dismiss. (R.95, R.52). Having taken TSC at its word that the Second Amended
Complaint was “a detailed pleading that outlines the nature of TSC’s business,” (R.95, Response
Br. at 5), the Court drew all reasonable inferences in TSC’s favor and held TSC outside of
Section 227(b)’s zone of interests, dismissing the Second Amended Complaint with prejudice.
(R.127). In other words, the disposition (with prejudice) accorded with the “federal rule policy
of deciding cases on the basis of the substantive rights involved rather than on technicalities[.]”
Runnion, 786 F.3d at 520 (citation omitted). In addition, in neither response brief did TSC
request another opportunity to amend, or suggest how it would amend to establish statutory
standing under the TCPA. (R.95, R.52). See Leavell v. Illinois Dep’t of Nat. Res., 600 F.3d 798,
808 (7th Cir. 2010) (affirming Rule 12(b)(6) dismissal with prejudice where the plaintiff “ha[d]
not suggested any way that she might amend her pleading to cure the deficiency”); Def. Sec. Co.
v. First Mercury Ins. Co., 803 F.3d 327, 335 (7th Cir. 2015) (affirming Rule 12(b)(6) dismissal
with prejudice and noting, “if [plaintiff] needed to establish certain facts as grounds for relief, it
should have alleged those facts in its complaint or at least asserted them in opposing dismissal in
the district court”).
TSC now argues that—based on (i) another court’s decision in Telephone Science
Corporation v. Trading Advantage, 1:14-cv-04369, 2015 WL 672266 (N.D. Ill. Feb. 17, 2015),
and (ii) its belief that standing under the TCPA was “expanded to the full extent permitted by
Article III”—it “reasonably believed . . . that the allegations in the [Second Amended Complaint]
sufficed to establish statutory standing in this case.” (R.138, Reply Br. at 10-14). The relatively
short Trading Advantage decision, however, did not purport to conduct a fulsome “zone of
interests” analysis with respect to TSC’s standing under Section 227(b)(1)(A)(iii). See 2015 WL
672266, at *1; see also Nat’l Credit Union, 522 U.S. at 492 (setting forth the “zone of interests”
test). In addition, TSC’s consistent failure to address Lexmark throughout several rounds of
briefing belies the suggestion that TSC “reasonably” believed statutory standing to be
commensurate with Article III standing. See Lexmark, 134 S. Ct. 1388-90 (cautioning against a
literal reading of “any person” and noting the “unlikelihood that Congress meant to allow all
factually injured plaintiffs to recover”).
The Court recognizes, however, that the Opinion constituted its first decision on ARS’
“zone of interests” challenge. See Gonzalez-Koeneke v. West, 791 F.3d 801, 807-09 (7th Cir.
2015), reh’g denied (Aug. 3, 2015). Accordingly, the Court addresses TSC’s post-judgment
request for leave to amend under Rule 15(a)(2). See Runnion, 786 F.3d at 523 (“a plaintiff who
receives a Rule 12(b)(6) motion and who has good reason to think the complaint is sufficient
may also choose to stand on the complaint and insist on a decision without losing the benefit of
the well-established liberal standard for amendment with leave of court under Rule 15(a)(2)”).
TSC’s Proposed Amendment
TSC now alleges that the ARS robocalls at issue in this case “serve no useful purpose to
TSC and are, therefore, unwanted and a nuisance. The continued calls also have an adverse
effect on TSC’s business and interstate commerce in general.” (R.138, Reply Br. Br. at 16).
Ultimately, even accepting these allegations as true and drawing all reasonable inferences in
TSC’s favor, see Virnich v. Vorwald, 664 F.3d 206, 212 (7th Cir. 2011), TSC—a
telecommunications service provider interested in commercial data collection for its customerservice offerings—does not fall “within the class of plaintiffs whom Congress has authorized to
sue” under the TCPA. See Lexmark, 134 S. Ct. at 1387.
TSC’s supplemental allegations do not change the Court’s prior recognition that the “only
reason for this volume of calls . . . is due to the nature of TSC’s business, which is providing
telecommunications services rather than consuming them.” (R.127, Opinion at 29 (citing Cellco,
2012 WL 1638056 at *9)). In other words, TSC’s “nuisance” theory—that ARS robocalls
became a “nuisance” after they no longer provided “fresh data” to optimize the Nomorobo
service—does not alter the reality that TSC used the TSC Numbers as a telecommunications
service provider, rather than a “consumer.” See MCI Commc’ns Servs., Inc. v. 1st United
Telecom, Inc., No. 3:10-CV-2255-B, 2012 WL 12884830, at *2-3 (N.D. Tex. Nov. 15, 2012)
(finding that a telecommunications carrier lacked standing to bring a TCPA claim even where it
was also the consumer of the phone lines in dispute, and used such lines for “customer services,
technical support, [and] conference bridge calls”). On this point, TSC’s “nuisance” theory is a
far cry from its supplemental authorities. See Morris v. Unitedhealthcare Ins. Co., No.
415CV00638ALMCAN, 2016 WL 7115973, at *5 (E.D. Tex. Nov. 9, 2016), report and
recommendation adopted, No. 4:15-CV-638, 2016 WL 7104091 (E.D. Tex. Dec. 6, 2016)
(individual plaintiff became “annoyed, disturbed, bothered . . . [when he] receive[d] unwanted
calls on a number [he has] taken steps to prevent getting calls at,” and such calls “disrupted [his]
sleep and . . . affected [his] job performance later in the day”); Evans v. Nat’l Auto Div., L.L.C.,
No. CV 15-8714, 2016 WL 4770033, at *3 (D.N.J. Sept. 13, 2016) (“As a consumer complaining
of receiving intrusive telemarketing calls, Plaintiff falls directly within the zone of interests
protected by the TCPA”). Relatedly, TSC has set forth no allegations concerning or supporting
an invasion of privacy or a risk to public safety. See Patriotic Veterans, Inc. v. Indiana, 736 F.3d
1041, 1050 (7th Cir. 2013) (recognizing “Congress’s goal to protect the privacy of citizens
against unsolicited telephone calls”); Lozano v. Twentieth Century Fox Film Corp., 702 F. Supp.
2d 999, 1009 (N.D. Ill. 2010) (“the purpose and history of the TCPA indicate that Congress was
trying to prohibit the use of [ATDS] to communicate with others by telephone in a manner that
would be an invasion of privacy”) (citing Satterfield v. Simon & Schuster, Inc., 569 F.3d 946,
954 (9th Cir. 2009)) (analyzing § 227(b)(1)(A)(iii)); see also TELEPHONE CONSUMER
PROTECTION ACT OF 1991, Pub. L. No. 102–243, 105 Stat 2394, § 2 ¶¶ 5, 14 (December 20,
1991); S. REP. NO. 102-178 at 5, reprinted in 1991 U.S.C.C.A.N. 1968, 1972-73 (1991); In Re
Rules & Regulations Implementing the Tel. Consumer Prot. Act of 1991, 18 F.C.C. Rcd. 14014,
Furthermore, as the Court previously held, TSC’s alleged damages—the per-minute
charges it incurred when it began to answer known robocalls in May 2015—“are not of the
vexatious and intrusive nuisance nature sought to be redressed by Congress in enacting the
TCPA, but rather are indirect, economic, and inherent to [its] business.” (R.127, Opinion at 2930 (citing Cellco, 2012 WL 1638056 at *8)). TSC’s clarification that it only answered
“unwelcome” robocalls—i.e., those that once did, but no longer do, provide useful data for its
business algorithm—does not result in a different outcome. In other words, although TSC did
not subscribe to the TSC Numbers “purely for the purpose of filing TCPA lawsuits[,]” Morris,
2016 WL 7115973 at *6, it made a business decision to purchase “thousands” of Twilio’s
“dirtiest” telephone numbers on a per-line charge, initially welcoming robocalls for the purpose
of data collection and identification. Once continuing and known robocalls proved non-useful to
its business model, and prevented TSC from exchanging a “clean” TSC Number for another
“dirty” TSC Number to welcome unknown robocalls, it began to answer such calls. TSC then
sought relief under a consumer protection statute based on 747 known and answered robocalls
incident to its business. Based on these facts, it is not reasonable to assume that Congress
intended to permit TSC’s lawsuit.
TSC’s remaining allegation—that ARS robocalls prevented TSC from returning “clean”
TSC Numbers to Twilio for release to the general public, thereby impeding interstate
commerce—does not place TSC within Section 227(b)’s protected zone of interests. As the
Court previously recognized, the “TCPA enables individual relief stemming from individual
violations; it does not contemplate generalized ‘citizen-suit’ protection.” (R.127, Opinion at 30;
id. at 18 (“TCPA confers a private right of action on the basis of individualized violations; it
does not confer a right upon ‘any person’ to commence an action in the name of consumer
protection”)). Here, TSC has identified no duty or obligation to “cleanse” TSC Numbers for
eventual use by the general public. The allegation that “[o]ver time, the Nomorobo service
results in the ‘dirty’ numbers becoming ‘cleansed,’” does not state an individualized interest in
interstate commerce facilitation. (R.129-3, Proposed Third Am. Compl. ¶ 16). More generally,
TSC has failed to explain how Congress intended “to facilitate interstate commerce by
restricting” the ARS robocalls at issue in this case. See Patriotic Veterans, 736 F.3d at 1050.
Even with TSC’s supplemental allegations, this case remains unlike the situation of TSC’s own
business customers, who subscribe to the Nomorobo service because they “have the right to run
[their] business without constant harassment.” (R.82-3, TSC Ltr. to FCC).
Although Congress authorized both natural persons and entities to bring individual TCPA
claims, see 47 U.S.C. § 227(b)(3), TSC’s proposed amendment does not establish its entitlement
thereunder. TSC’s supplemental allegations, in short, do not change the Court’s prior reflection
[T]he presence of explicit congressional findings and the statutory emphasis on “privacy
rights” constrains the Court in reading Section 227(b)(3)’s “person or entity” language
too broadly. See 47 U.S.C. §§ 227(b)(2)(C), 227(b)(2)(B)(ii); Patriotic Veterans, 736
F.3d at 1050 (citing the same as “noting the privacy interests behind the statute and
requiring the [FCC] to consider privacy interests in using its rulemaking authority”); see
generally Pub. L. No. 102-243, § 2. Indeed, according to its findings, Congress passed
the TCPA, in part, because “technologies that might allow consumers to avoid receiving
such [nuisance] calls are not universally available, are costly, are unlikely to be enforced,
or place an inordinate burden on the consumer.” See Pub. L. No. 102-243, § 2, ¶ 11.
Today, Nomorobo stands as one such technology, available to protect consumers from
unwanted robocalls. The TCPA, meanwhile, stands as a separate protection mechanism.
TSC’s attempt to conflate the two, however, must fail.
(R.127, Opinion at 32). Accordingly, the Court denies TSC’s Rule 15(a)(2) motion on futility
grounds.3 See Gonzalez, 791 F.3d at 808 (“We will not reverse a district court’s decision,
however, when the court provides a reasonable explanation for why it denied the proposed
TSC asks the Court to infer from a recent minute entry in Telephone Science Corporation v. Pizzo, et al. No. 15cv-1702 (E.D.N.Y. 2015), Dkt. Nos. 81, 83-85, that the District Court for the Eastern District of New York
“implicitly ruled that TSC’s proposed amended complaint was not futile.” (R.151). Given that (i) no party in Pizzo
moved to dismiss the complaint on “zone of interests” grounds, (ii) no party in Pizzo opposed TSC’s motion for
leave to amend, and (iii) the Pizzo court’s minute entry reflects no reasoning apart from an acknowledgment that the
motion was unopposed, the Court is not persuaded that the Pizzo court addressed the merits of TSC’s supplemental
allegations and deemed TSC within the statutory “zone of interests.” This minute order, in short, does not affect the
Court’s present analysis.
amendment. A district court acts within its discretion in denying leave to amend, either by
dismissing a complaint with prejudice or by denying a post-judgment motion, when the plaintiff
fails to demonstrate how the proposed amendment would cure the deficiencies in the prior
For the foregoing reasons, the Court denies TSC’s post-judgment motion for relief
pursuant to Rules 59(e) and 15(a)(2). (R.129).
Dated: January 5, 2017
AMY J. ST. EVE
United States District Court Judge
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