The reason the law moves to quick in this area is obvious– the money is HUGE. That draws in the best lawyers. And the best lawyers raise the best (novel) arguments that is constantly pushing the law forward.
Plus given the huge number of TCPA cases being filed and the fact that almost all are in federal court (where well thought out and published decisions are the norm) the TCPA has become the white water rapids of the legal world.
And its fun!
But if you don’t keep up with the times you can end up wasting your client’s money on yesterday’s arguments.
Take the case of Massarello v. Power Home Remodeling 2025 WL 3172842 (E.D. Mih Nov. 13, 2025). There the defendant requested an interlocutory appeal from a motion to dismiss ruling (we’ve seen this before.)
Yes, this was a #biglaw special, but I am not going to hate too much because the rationale for the requested appeal used to be a pretty good argument.
The issue is whose consent a caller needs. Allegedly the Defendant had the consent of a consumer it was trying to reach but either due to a wrong number entry or a reassigned number (unclear from the ruling) the Defendant called the wrong party.
The question is whether Defendant can rely on the consent from the consumer it was trying to reach to justify the call to the wrong number.
While it might intuitively seem like the answer is “no” there is actually good reason to think the answer is “yes.” The TCPA requires consent from the “called party” and looking at the issue from the Defendant’s point-of-view and at the moment it “initiates” the call the “called party” is plainly the consumer the Defendant is trying to reach. At that moment in time there is literally no other potential “called party”– all other potential options (i.e. the subscriber, the regular user, or the random answerer) become fixed from the defendant’s perspective only after the call connects.
And since a defense should be applied in a manner that protects a defendant, it only makes sense to view the defense from the defendant’s perspective.
So this is not a terrible argument.
The problem, though, is that no court has latched onto it in years. Now that doesn’t mean it shouldn’t be raised– it should in the proper situation.
But here’s the problem– raising it to seek an interlocutory appeal from a judge that has already ruled against you on that exact issue is not wise.
And that’s what happened in Massarello– the court ruled the “called party” was the subsriber to the phone (which is the majority view) and denied defendant’s earlier effort to dismiss the case. Still the Defendant pushed the issue, and that was seemingly a waste of the client’s money.
The court had no problem finding there was no ground for disagreement on the issue:
In sum, Defendant is incorrect that there is a circuit split regarding the meaning of “the called party,” at least concerning the specific question of whether it means a call’s intended or actual recipient. Rather, every circuit to address the issue has rejected equating “the called party” with an intended recipient. And various district cases Defendant cites are no longer good law in light of these circuit decisions. The Court concludes that there is no substantial ground for difference of opinion here because (1) may of the district court cases cited by Defendant are all over a decade old, or are no longer good law, (2) the recent trend appears consistent with the Court’s prior order, and (3) every circuit court to address the issue has rejected Defendant’s proposed interpretation.
Yeah. Tough to disagree.
Again, I am not saying this is a dead argument– its not. Its just not an argument a judge is going to certify to an appeals court after ruling with the majority on.
