By Stephen J. Shapiro
The Telephone Consumer Protection Act (TCPA) provides, in relevant part, that “[i]t shall be unlawful for any person . . . to make any call (other than a call made . . . with the prior express consent of the called party) using any automatic telephone dialing system . . . to any telephone number assigned to a . . . cellular telephone service . . . or any service for which the called party is charged for the call.”
In a recent decision, the Eleventh Circuit held that: (i) the “called party” who must give consent is the current subscriber of the cellular phone line; (ii) a person who shares a cellular phone plan with the subscriber may or may not, depending on the circumstances, have authority to give the consent envisioned by the TCPA; (iii) a “called party” may revoke consent orally; and (iv) a “called party” need not prove that he or she was charged for the calls at issue in order to prevail on a claim under the TCPA.
In Osorio v. State Farm Bank, F.S.B., Clara Betancourt provided the cellular phone number of her partner, Fredy Osorio, on a credit card application. When Betancourt later became delinquent on her credit card payments, a debt collector hired by the defendant creditor made more than 300 autodialed calls to Osorio. Osorio sued the creditor under the TCPA, alleging that he had not provided consent for the creditor to call his cellular phone and, even if he had, he later orally revoked that consent during telephone calls with the debt collector. The district court granted summary judgment in favor of the creditor, holding that Betancourt had consented to the calls when she provided the telephone number on her application and that Osorio’s alleged revocation was not effective as a matter of law because it was not in writing.
On appeal, the Eleventh Circuit reversed. On the issue of consent, because the TCPA permits calls to cellular telephone numbers “with the prior express consent of the called party,” the Court first addressed who qualifies as the “called party.” The Court held that the phrase “called party” means the current subscriber of the cellular phone line. Therefore, the Court concluded, the creditor had to establish that Osorio consented to the calls in order to avail itself of the TCPA’s consent exception. Because the parties had presented conflicting evidence as to whether Betancourt was authorized to consent to the calls on behalf of Osorio and, if so, whether she had in fact done so, the Court held that the issue of consent had to be resolved by a jury and that summary judgment was not appropriate. In so ruling, the Court rejected the creditor’s argument that Betancourt, as a matter of law, had authority to consent to calls to the cellular phone of anyone in her household.
On the issue of whether revocation of consent may be communicated orally or only in writing, the Court noted that, although the Fair Debt Collection Practices Act (FDCPA) requires a debtor who no longer wishes to be contacted by a debt collector to notify the debt collector in writing, the TCPA does not contain equivalent language. The Court “presume[d] from the TCPA’s silence regarding the means of providing consent that Congress sought to incorporate ‘the common law concept of consent.’” Explaining that the common law concept of consent “generally allow[s] oral revocation,” the Court held that a “called party” may orally revoke consent for purposes of the TCPA. Since the parties disputed whether Osorio orally revoked any consent Betancourt may have given to call the cellular phone, the Court held that summary judgment on the issue of revocation of consent was not appropriate.
Finally, the creditor argued that, because the TCPA prohibits calls “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,” a plaintiff must prove that he was charged for the calls at issue in order to prevail under the TCPA. The Court rejected this argument, holding that, as a matter of statutory construction, “the phrase ‘for which the called party is charged for the call’ modifies only ‘any service’ and not the other terms” in the provision such as “cellular telephone service.”