TCPA Prior Express Consent Must Come From ‘Called Party’

11th Circuit Rules that the Called Party is Required to Give Prior Express Consent to Receive ATDS Generated Calls under the TCPAThe Telephone Consumer Protection Act requires a call placed to a cellular phone using an autodialer 1, to have the prior express consent of the person who received the call, the Eleventh Circuit Court of Appeals held this past Friday.

In Osorio v. State Farm Bank, debt collection calls were made to a cellular phone line subscribed to by Fredy Osorio.The intended recipient of the calls was Osorio’s long-time cohabitant, Clara Betancourt.  Betancourt had previously applied for car insurance from State Farm and at the same time applied for and received a credit card from State Farm to which her car insurance premiums were charged.

Betancourt’s insurance application to State Farm listed Osorio’s cell phone as her “work” telephone. In her credit card application, she identified Osorio’s cell phone number as being her own cell phone number. Betancourt testified that she later spoke with a State Farm representative during which she provided a different cell phone number. She also testified that during that same conversation she advised State Farm that Osorio’s cell phone number was to be used “only for emergencies.”

Betancourt’s separate cell phone was also included within Osorio’s cell phone plan.

Prior Express Consent and the “Called Party”

The trial court had entered judgment in favor of State Farm dismissing the TCPA claim. The trial court reasoned that if it held otherwise, “debt collectors would be held liable whenever a debtor lists a family member’s number as his own.” The trial court also found that when Betancourt provided Osorio’s cell phone number to State Farm, she could do so because “she lives with Osorio, had a son with him, and shares a cell-phone plan with him that is listed in [Osorio’s] name.”

The Eleventh Circuit disagreed with the trial court’s reasoning. It found that the TCPA section applicable here only permits State Farm to call a cell phone using an “automatic telephone dialing system or an artificial or prerecorded voice” when it has obtained the prior express consent of the “called party.” The called party here, the Eleventh Circuit concluded, was Osorio, who had never provided State Farm with consent to call his cell phone. 2

Prior Express Consent Can Come from the Called Party’s Agent

The Eleventh Circuit did not foreclose the possibility that prior express consent can come from a person other than the called party. One way State Farm could demonstrate the necessary authority, the court suggested, is under the common law of agency. An example it provided was if Osorio had permitted Betancourt to give consent for him to receive calls intended for her on his cell phone. Under common law agency, Betancourt would then have sufficient authority to give Osorio’s prior express consent to State Farm.

However, the appeals court found that the facts before it were insufficient to allow it to rule on this issue for either party and remanded the case to the trial court. It rejected the trial court’s finding that Osorio’s and Betancourt’s long-term cohabitation was itself sufficient to provide Betancourt with the needed authority. “Parents and cohabitants everywhere would be shocked to learn that every adult in their household is legally entitled to consent to having autodialing debt collectors call any of their cell phones,” said the appeals court. However, there can be circumstances where “one adult might authorize another to do so,” it added.

The case was remanded back to the trial court for a jury to decide whether Osorio had provided Betancourt with authority to give his “prior express consent” for State Farm to contact his cell phone.

Prior Express Consent Can be Orally Revoked

The Eleventh Circuit also adopted the reasoning of the Third Circuit Court of Appeals, and held that the TCPA permits a person to orally revoke their prior express consent.

Calling a Cell Phone is Sufficient, a Charge Does Not Have to be Incurred

The appeals court also interpreted the TCPA as prohibiting calls to a cell phone, regardless of whether the called party is actually charged for the call.

Fueling Another Rush of TCPA Litigation

Although this decision is fact-sensitive and leaves intact the concept of prior express consent coming from someone other than the “called party,” it will likely further the efforts of many who are finding TCPA litigation a lucrative enterprise.

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Notes:

  1. Presumably there was no dispute that the “autodialer” used here was an “automatic telephone dialing system” under the TCPA. The TCPA regulates the use of an ATDS to contact a cellular phone when collecting debt.
  2. The court here adopts the rationale of the Seventh Circuit’s holding in Soppet v. Enhanced Recovery Co., LLC, 679 F.3d 637 (7th Cir. 2012). There, a debt collector used an automatic telephone dialing system to make a call to a cellular number which had been provided by the debtor to the creditor. Unfortunately for the debt collector, by the time it began its debt collection activity, the cell phone number provided by the debtor had since been reassigned to a third-party. That third party began to receive the collection calls on her cell phone.

Donald Maurice provides counsel to the financial services industry, successfully litigating matters in the state and federal courts in individual and class actions. He has successfully argued before the Third, Fourth and Eighth Circuit U.S. Courts of Appeals, and has represented the financial services industry before several courts including as counsel for amicus curiae before the United States Supreme Court. He counsels clients in regulatory actions before the CFPB, and other federal and state regulators and in the development and testing of debt collection compliance systems. Don is peer-rated AV by Martindale-Hubbell, the worldwide guide to lawyers. In addition to being a frequent speaker and author on consumer financial services law, he serves as legal counsel to DBA International and as chair of the ABA's Bankruptcy and Debt Collection Subcommittee. He serves on the governing Board of Regents of the American College of Consumer Financial Services Lawyers and on the Governing Committee of the Conference on Consumer Finance Law .