April 13, 2014
TCPA debt collection calls can only be placed to cell phone subscribers
On March 28, 2014, the United States Court of Appeals for the Eleventh Circuit ruled that debt collection calls can only be placed to the subscriber of the cellular telephone being called under the Telephone Consumer Protection Act (“TCPA”). Specifically, section 227(b)(1)(A)(iii) of the TCPA states, in part, that it shall be unlawful to make any call using an automated dialing system or artificial or prerecorded voice to any telephone number “for which the called party is charged for the call.” (emphasis added). In the case of Osorio v. State Farm Bank, a woman opened a credit card account over the telephone after purchasing insurance through State Farm. During the call, the applicant provided a cellular telephone number at which she could be reached. However, the number belonged to her live-in boyfriend, the plaintiff in the action. State Farm is alleged to have placed 327 autodialed debt collection calls to the cellular number provided after the applicant defaulted on her credit account. The plaintiff sued State Farm for violating the TCPA, claiming that his girlfriend did not have the authority to consent to debt collection calls being placed to his cellular telephone. State Farm was granted summary judgment dismissing the TCPA claims, but the Court of Appeals reversed.
The District Court Ruling
In the lower court proceeding, the district court summarily ruled in State Farm’s favor. The court relied on theories of criminal law to hold that the applicant had “common authority” over the cellular telephone at issue and, therefore, her consent was valid and binding. The court stated that “[i]f [the plaintiff] could sue State Farm for over $75,000 because this woman with whom he cohabitates with [sic] and had a child with provided ‘his’ number to State Farm on multiple occasions, debt collectors would be held liable whenever a debtor lists a family member’s number as his own.” The court also reasoned that because the plaintiff lived with and shared a cellular telephone plan with his girlfriend, she had authority to consent to the calls.
The Court of Appeals Reverses
The Court of Appeals flatly rejected the application of the “common authority” theory to TCPA claims. Instead, the Court began by reviewing common law definitions of “consent.” The Court reasoned that under the common law, consent could only be given by the actual subscriber of the cellular telephone service. The only way anyone else could give such consent is pursuant to common-law rules of agency.
Additionally, the Court rejected State Farm’s argument that consent could only be revoked in writing under the TCPA. The Court ruled that, unlike the Fair Debt Collection Practices Act, the TCPA allows oral revocation of consent. The Court further rejected State Farm’s argument that a defendant can only be charged with violating the TCPA if the recipient of the autodialed telephone call was, in fact, charged by the cell phone provider for the subject call.
The federal government has been very active in reviewing and enforcing the TCPA. As we have previously mentioned, the FCC has recently promulgated new rules (See New TCPA Rules Effective October 16, 2013) and issued rulings regarding the interpretation of the TCPA. (See FCC Grants TCPA Exemption for Package Delivery Alert Text Messages). With the continued evolution of the applicability of the TCPA to business practices, the Court’s ruling may open a Pandora’s Box as it relates to the TCPA. Specifically, consumers and professional plaintiffs may seek to exploit this ruling regarding TCPA consent. As such, when businesses obtain consumer contact information, they must make certain that any cellular telephone number provided actually belongs to the consumer.
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