The U.S. Court of Appeals for the Eleventh Circuit recently held that auto-dialed telephone calls intended for a former customer but received by a cellular telephone subscriber without their prior express consent constituted a violation of the federal Telephone Consumer Protection Act of 1991 (“TCPA”).
Specifically, the Court held that a “called party” for purposes of § 227(b)(1)(A)(iii) is the subscriber to the cell phone service, and rejected the defendant’s contention that “called party” meant the intended recipient of the call.
A copy of the opinion is available at: http://www.ca11.uscourts.gov/opinions/ops/201214564.op2.pdf
As you may recall, the TCPA generally prohibits making any call using an automatic telephone dialing system to a cellular telephone without the prior express consent of the “called party.” 47 U.S.C. § 227(b)(1)(A)(iii) (2006). In this matter, the Court was asked to determine the proper interpretation of the term “called party.”
The defendant bank made multiple calls using an autodial system to a cell phone number assigned to the plaintiff, and used exclusively by her minor daughter. The plaintiff, individually, and on behalf of her minor daughter, filed suit alleging that the bank’s calls violated the TCPA’s prohibition on autodialing cell phones without the express consent of the called party.
The defendant bank filed an affidavit of one of its employees, who testified that the calls were placed to collect a debt from a former customer who had listed the phone number on an account application, and that the bank was unaware that the cell phone number was no longer assigned to the former customer.
The bank argued that the former customer — the intended recipient of the autodial calls — was the “called party” for purposes of §227(b)(1)(A)(iii), and because he had consented to being called via automatic dialing system, the TCPA’s prohibition did not apply. The lower court rejected the bank’s argument and granted partial summary judgment in the plaintiff’s favor, concluding that the “called party” for purposes of §227(b)(1)(A)(iii) was not the former customer, but the plaintiff.
During the pendency of this appeal, another panel of the Eleventh Circuit was faced with the same question. In Osorio v. State Farm Bank, the Eleventh Circuit defined a “called party,” for purposes of § 227(b)(1)(A)(iii) as the subscriber to the cell phone service, and rejected the defendant’s contention that “called party” could mean intended recipient.
Thus, the Court indicated it was bound by the ruling of the panel in Osorio, and affirmed the lower court’s order of partial summary judgment to the plaintiff who did not consent to the bank’s auto-dialed cell phone calls.
Ralph T. Wutscher
McGinnis Wutscher Beiramee LLP
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