On March 3, the Eleventh Circuit Court of Appeals, in Stalley v. ADS Alliance Data Systems, Inc., No. 14-10872, held that a servicer of credit card accounts did not violate the Florida Security Communications Act (FSCA) when it recorded conversations with consumers in the ordinary course of business without the consent of all parties.
In Stalley, the defendant-servicer placed several telephone calls to a home phone number in Florida regarding a consumer’s credit card accounts. The consumer complained that she was receiving a number of calls from creditors and requested that her husband answer the telephone on her behalf. The defendant recorded these outgoing phone calls to the consumer and her husband based on its company policy to record all incoming and outgoing calls between its employees and third-party account holders, including those calls made without the consumer’s consent. The consumer then filed a class action alleging violations of the FSCA, which “makes it a crime to intentionally intercept a person’s electronic communications, including a telephone call, without prior consent of all parties to the communication.”
The district court granted summary judgment in the defendant’s favor, holding that the FSCA’s business extension exception applied to calls that were recorded without the consumer’s consent pursuant to the defendant’s company policy in the ordinary course of business. Importantly, the court also denied class certification on ascertainability grounds since the court would be forced to examine each recorded call to determine if consent to record was received from the individual consumer.
On appeal, the Eleventh Circuit agreed. In concluding that the defendant’s conduct fell under the FSCA’s business extension exception, it held that there was no “interception” within the meaning of the FSCA because the telephone extension that intercepted the calls from the credit card account servicer to the consumer (rather than the “logger” or recording device) was supplied by a provider of wire or electronic communication services in the ordinary course of business. The court also agreed with the district court’s finding that the credit card account servicer recorded the calls pursuant to its company policy.