A TCPA Violation Confers Standing Under Spokeo in the 3rd Circuit

By Stephen A. Fogdall

The United States Court of Appeals for the Third Circuit has concluded that an alleged violation of the Telephone Consumer Protection Act creates a sufficiently concrete injury to give a plaintiff standing to sue under Spokeo, Inc. v. Robbins.

The U.S. Supreme Court held last year in Spokeo that while a violation of a statutory right does not by itself constitute a concrete injury for purposes of Article III standing, Congress nevertheless can by statute elevate an intangible harm “to the status of a legally cognizable injury” where the “intangible harm has a close relationship to a harm that has traditionally been regarded as providing a basis for a lawsuit in English or American courts.”

The Third Circuit applied this principle to the TCPA in Susinno v. Work Out World Inc.  The plaintiff alleged that she received an unsolicited call on her cell phone from a fitness company, and the company left a one minute prerecorded voicemail message when she did not answer.  She was not charged for the call.

The Third Circuit held, first, that that these allegations were sufficient to state a claim for a violation of the TCPA, and second, that the plaintiff had standing to bring the claim under Spokeo.  The court explained that “when one sues under a statute alleging the very injury the statute is intended to prevent, and the injury has a close relationship to a harm traditionally providing a basis for a lawsuit in English and American courts, a concrete injury has been pleaded.”

The court found that both of these requirements were met on the plaintiff’s allegations.  The alleged “nuisance and invasion of privacy” resulting from a single unsolicited cell phone call and prerecorded voicemail message were “the very harm Congress sought to prevent” under the TCPA, and bore a close relationship to claims for invasion of privacy and “intrusion upon seclusion” that traditionally have been protected under the common law.

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.

In a TCPA case, Eleventh Circuit addresses who may give consent, how consent may be revoked and whether a charge is required

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.”

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