Eleventh Circuit Construes ‘Called Party’ Consent Provision of TCPA

By Andrew Glass and Greg Blase

Courts continue to weigh in on the evolving body of law under the Telephone Consumer Protection Act.  Last month, the U.S. Court of Appeals for the Eleventh Circuit joined the conversation on the issue of who may be considered the “called party” under the TCPA for purposes of providing consent to receive auto-dialed and pre-recorded voice calls placed to a wireless number.  The TCPA prohibits such calls to wireless phones without the “prior express consent of the called party.”

 

The Eleventh Circuit faced the question of whether a debtor’s provision of her partner’s cell phone number on a credit application constituted consent for a debt collection firm to call that number on behalf of the credit card company to collect the outstanding balance the debtor owed on the card.  The debt collection firm placed more than 300 autodialed calls to the partner’s cell phone in an attempt to collect the outstanding balance.  The partner sued the credit card company on the basis that he had not provided consent.

The court, reversing summary judgment for the credit card company, found numerous factual issues that precluded summary judgment, including whether the debtor had authority to provide consent for the partner; whether the partner had told a collection agent to stop calling, thereby revoking consent; and whether the debtor had specified that the partner’s number could only be used for emergencies, limiting the scope of her consent to the extent she was authorized to provide it.

In reversing, the court concluded that the term “called party” refers to the current subscriber to the wireless line and that only the current subscriber can consent to receiving an auto-dialed call to his or her wireless number, either directly or through an authorized agent. The factual question for the jury on remand was whether here, the debtor had been so authorized by her partner.  The court also rejected the credit card company’s argument that consent under the TCPA must be revoked in writing, noting that oral revocation could suffice, leaving for the jury whether the partner had revoked any consent that was provided through an alleged oral request to “stop calling.”

The court’s focus on whether the debtor could provide consent as an agent for her partner poses an interesting juxtaposition to the FCC’s recent declaratory ruling in response to a petition filed by GroupMe, which TMT Law Watch reported on earlier this month.  There, the FCC found the caller could rely on a third-party intermediary who conveys that consent had actually been provided by a called party, but that an intermediary cannot provide consent “on behalf of” the called party.  The Eleventh Circuit found, however, that consent can still be provided by an authorized agent.

The court’s ruling builds on a still-evolving body of case law addressing issues of consent and revocation under the TCPA.  The case is Osorio v. State Farm Bank, F.S.B., — F.3d —, 2014 WL 1258023 (11th Cir. Mar. 28, 2014).

 

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