No Class Certification in ‘Project Runway' TCPA Suit

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Sept. 24 — Lifetime Entertainment Services LLC won't have to face class Telephone Consumer Protection Act claims alleging that it unlawfully called consumers to promote its television show “Project Runway” because the proposed class isn't ascertainable, the U.S. District Court for the Southern District of New York held Sept. 22.

Although plaintiff Mark Leyse's proposed class isn't ascertainable, Judge Alvin K. Hellerstein ruled the case may proceed on the single violation of TCPA, 47 U.S.C. § 227, alleged by Leyse.

The court recounted that in 2009, Lifetime, a cable television channel, was available in New York City to customers of Time Warner Cable and other cable providers. In 2009, Lifetime began airing “Project Runway,” which had aired on the channel Bravo for its first five seasons. Prior to the sixth season premier of the show on Lifetime, Time Warner moved Lifetime from channel 12 to channel 62, the court said.

Due to the channel change, Lifetime feared that it would negatively affect viewership of the season premier. In order to notify its viewers, Lifetime decided to calls customers with a recorded voice message by the show's host, Tim Gunn. To execute the voice message calls, Lifetime retained a third party company called OnCall Interactive, which, in turn obtained a list of telephone numbers for Time Warner customers in New York City within zip codes provided by Lifetime. Lifetime was allegedly never provided with the list of the telephone numbers.

‘Called Party' Under the TCPA

The court said that in 2009, plaintiff Leyse shared an apartment with Genevieve Dutriaux, in whose name the apartment was leased. The telephone service in the apartment was also in Dutriaux's name. According to Leyse, he “routinely checked” the voicemail for Dutriaux's phone number and paid the telephone bill “most of the time.” Sometime in 2009, Leyse alleged, he heard the prerecorded message from Lifetime on Dutriaux's voicemail. Four years later on Aug. 16, 2013, Leyse filed suit.

In May, Leyse moved for class certification. Lifetime moved for summary judgment, arguing that Leyse doesn't have standing as a “called party” under the TCPA.

The court disagreed.

The court explained that in a July 2015 TCPA order, the Federal Communications Commission clarified that a “called party” includes the subscriber—“the consumer assigned the telephone number dialed and billed for the call,” as well as a non-subscriber—“customary user of a telephone number included in a family or business calling plan.” The FCC also said that it is reasonable to include individuals “who, due to their relationship to the subscriber, are the number's customary user and can provide prior express consent for the call.”

The court concluded that Lifetime failed to show that Leyse wasn't a “non-subscriber customer user.” Although Leyse has statutory standing to bring the TCPA claim, the court said, his proposed class fails to meet the ascertainability requirement. There's no copy of the list of called numbers and it's unlikely that such a list will be discovered, the court said, denying the class certification bid.

Todd C. Bank in Kew Gardens, N.Y. represented Leyse. Davis Wright Tremaine LLP represented Lifetime.

Full text of the court's opinion is available at http://www.bloomberglaw.com/public/document/Leyse_v_Lifetime_Entertainment_Services_LLC_Docket_No_113cv05794_.