If you think you have consent to autodial a cell phone, you may need to think again

By Stephen J. Shapiro

The Telephone Consumer Protection Act (TCPA) prohibits the use of automated dialing systems to call cell phones without the consent of the “called party.” Therefore, creditors often request and receive consent from debtors to autodial their cell phones. A recent case out of the Eleventh Circuit, though, illustrates just how easily a creditor can run afoul of the TCPA, even when it believes it has consent. Specifically, when a debtor who has consented to receive autodialed calls to his cell number surrenders the number and it is assigned to someone else, the creditor can violate the TCPA by autodialing the number, even if the creditor did not know the number was reassigned.

In Breslow v. Wells Fargo Bank, N.A., a creditor attempted to collect a debt by using an automated dialer to call the cell phone number its debtor had provided on an account application.  Unbeknownst to the creditor, the debtor had surrendered the cell phone number and it had been reassigned to the plaintiff sometime after the debtor included it on the account application. The plaintiff, in both her individual capacity and on behalf of her minor child, who was the primary user of the cell phone, sued the creditor for violating the TCPA.

On motions for summary judgment the creditor took the position that the intended recipient of a call – here, the debtor – is the “called party” for purposes of the TCPA. Because it intended to call the debtor and because the debtor had consented to receive such calls, the creditor argued that it had the consent of the “called party” and had not violated the TCPA. The district court rejected this argument, and entered summary judgment in favor of the plaintiffs.

On appeal, the Eleventh Circuit affirmed. After noting that the TCPA does not define “called party” and then examining the act’s legislative history to divine Congress’ intent, the Court held that the term “called party,” as used in the relevant section of the TCPA, “means the subscriber to the cell phone service or user of the cell phone called.” Because neither the plaintiff nor her child – the subscriber and user of the cell phone at the time of the calls at issue – had consented to receive autodialed calls to the number, the Court agreed with the district court’s conclusion that the creditor had violated the TCPA. In reaching this result, the Court adopted the reasoning of the Seventh Circuit, which previously had arrived at the same conclusion. And, although it did not mention it, the Court’s definition of “called party” was similar to, though somewhat broader than, the definition that a different panel of the Eleventh Circuit offered in a decision earlier this year.

The Eleventh Circuit noted in the Breslow opinion that the TCPA, which was enacted in 1991, “may not comport with current cell phone trends.” The Court also pointed out that requiring creditors to confirm the validity of consent previously obtained is a burdensome endeavor that, in any event, may be of limited value given that such “confirmation is good only for that moment in time.” Indeed, the Court noted that “[t]here is no guarantee that the customer will continue to use the cell phone” number, especially after he begins receiving collection calls on it. The Court concluded, though, that these issues must be addressed by Congress, not by the courts.

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