On June 3, 2020, the Ninth Circuit Court of Appeals dealt a blow to callers governed by the Telephone Consumer Protection Act (“TCPA”), which exempts callers from liability for automatic telephone dialing system-generated (“ATDS”) calls if the calls are made with “prior express consent of the called party.” In N.L. v. Credit One Bank, N.A., the Ninth Circuit joined other circuits in holding that a caller’s intent to call a customer who consented to calls will not exempt the caller from TCPA liability if the caller mistakenly calls someone who did not consent.
The Calls and the Lawsuit
In 2014, D.V., a Credit One customer, gave Credit One consent to call his cellphone. When D.V. fell behind on payments, Credit One’s collectors began making automated calls to the cellphone number that they had listed for D.V. However, that number had since been reassigned to Sandra Lemos, whose son was on her cellular service plan and who was using the cellphone with the number that previously belonged to D.V. Neither Lemos, nor her son, had consented to the calls. Well over 100 calls were made to the son’s number.
On behalf of her son, Lemos sued Credit One and its collectors for violations of the TCPA, California’s Rosenthal Fair Debt Collection Practices Act, and for invasion of privacy. The collectors settled, but the claims against Credit One went to trial.
At trial, the court instructed the jury that consent to receive the calls given by the current subscriber or user of the called phone (in other words, Sandra Lemos or her son) was required, and consent of the intended recipient (D.V.) was irrelevant. The jury found for Credit One on the invasion of privacy claim. However, the jury found for Lemos’s son on his TCPA claim and Rosenthal claim.
Credit One appealed to the Ninth Circuit and argued that it should not be liable under the TCPA because it had the consent of the party it intended to call. The court rejected Credit One’s “intended recipient” interpretation, relying heavily on the text of the TCPA and other sources.
The court conducted a detailed analysis of the term “called party,” including looking to other parts of the TCPA,
Congressional intent, and the FCC’s orders in determining how it should interpret that term. In looking at the portions of the TCPA that were at issue, the court noted that the TCPA exempts from liability ATDS-generated or prerecorded voice calls made with “prior express consent of the called party.” The court acknowledged that the TCPA does not reference “intended” recipients of calls. Instead, the TCPA provides that calls “made with the prior express consent of the called party” will not violate the statute. The court reasoned that “[u]nder the statute, the ‘call’ that is ‘made’ is the call that is received, for it is this received call that provides the basis for the private cause of action and thus civil liability.” Further, the court reasoned that it would be “odd if ‘called party’ referred to some third person external to the potentially actionable communication,” such as the intended recipient.
In looking at other parts of the TCPA, the court focused on § 227(b)(1)(A)(iii), which prohibits calls (without consent) “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 ….” Under this TCPA provision, a “called party” that is “charged for the call” could only be the cell phone’s current subscriber and could not be some third-party who has no connection to that cellular service plan but who was the intended recipient of the call. It seemed clear to the court that “called party” in that section of the TCPA could only be the current subscriber or, in other words, the person who currently has the phone number being called.
The court cited additional references to “called party” in the TCPA, which further convinced it that “called party” in the TCPA refers to the party actually called and not the party that was intended to be called.
The court next addressed Credit One’s argument that Congress’ statutory purpose supports Credit One’s “intended recipient” interpretation. The court disagreed: “[i]n enacting the TCPA, Congress found that ‘[b]anning such automated or prerecorded telephone calls to the home, except when the receiving party consents to receiving the call …, is the only effective means of protecting telephone consumers from this nuisance and privacy invasion.’”
The court also rejected Credit One’s attempt to find support from the 2015 and 2018 FCC Orders on the TCPA. The FCC issued an order in 2015, which, the court explained, created “a one-call safe harbor for callers who unknowingly dial reassigned numbers if they had obtained consent from the previous subscriber.” The safe harbor provision was later vacated by a federal court. In 2018, the FCC issued another order allowing for a comprehensive reassigned number database. The 2018 Order also created a safe harbor for callers that rely on the database. As the court explained, “[i]n Credit One’s view, these safe harbors weigh against interpreting ‘called party’ in a way that creates strict liability for callers that dial reassigned numbers.” The court rejected this argument and reasoned that “[i]f a caller’s intent could defeat liability, the safe harbors would be unnecessary.” Additionally, the court explained the prior 2015 Order “clarif[ied] that the TCPA requires the consent not of the intended recipient of a call, but of the current subscriber (or non-subscriber customary user of the phone).”
Credit One argued that requiring the consent of the called party, instead of the intended party, will leave callers helpless and unable to take reasonable steps to avoid liability. The court disagreed and noted that one of its sister courts, the Seventh Circuit Court of Appeals, already had addressed this argument. The Seventh Circuit refused to be persuaded and instead suggested that callers can avoid TCPA liability by having a person call first to confirm the number is correct or callers can “us[e] ‘a reverse lookup to identify the subscriber.’” The Credit One court agreed with that rationale.
This decision marks yet another Federal Circuit Court of Appeals that has held that a caller’s intent to call a customer who has expressly consented to ATDS-generated calls will not exempt the caller from TCPA liability if the caller accidentally calls another individual who did not consent. Thus, the landscape regarding these types of calls is becoming increasingly difficult for those using ATDS to place calls to customers. Collectors and other callers would be well-served to review this decision and the other related decisions if they use ATDS-generated calls in contacting individuals.
Wesley A. Shumway is an associate attorney in Spilman Thomas & Battle’s Charleston, West Virginia office. His primary area of practice is litigation, including consumer finance litigation. He can be reached at 304.720.3412 or email@example.com.
Nicholas P. Mooney II is a member attorney in Spilman Thomas & Battle’s Charleston, West Virginia office. His primary area of practice is consumer financial services litigation in federal and state courts. He has devoted all of his time for the past 21 years to that practice area. He can be reached at 304.340.3860 or