On December 17, Judge Christina Snyder of the United States District Court for the Central District of California granted a motion to stay a lawsuit under the Telephone Consumer Protection Act (“TCPA”) by Defendant Time Warner Cable (“TWC”).  The Court granted the motion pending the District of Columbia Circuit Court of Appeals’ decision in ACA International, et al. v. Federal Communications Commission (“FCC”) et al., a consolidated appeal of the FCC’s July 10, 2015 Order (the “FCC Order”) expanding the TCPA’s reach.

The plaintiff in this case, styled Fontes v. Time Warner Cable, Inc., alleges that he received numerous unsolicited calls delivering prerecorded messages from TWC despite not being its customer and never providing it with his phone number.  TWC argues that it only dialed numbers provided by its customer and that it had no knowledge that the phone number had been reassigned to the plaintiff.

The FCC Order specifically discussed the reassigned number issue, finding that “the TCPA requires the consent not of the intended recipient of a call, but of the current subscriber [or customary user of the phone]. As such, if a phone number provided by a prior customer is reassigned, attempting to reach that prior user at the outdated number may violate the TCPA.

In a controversial 3-2 ruling, the FCC provided a one-call exception for reassigned numbers, meaning any ATDS call after the first attempt to a reassigned number may violate the TCPA.  Potential liability exists if a caller does not realize that a number has been reassigned, such as if the call goes unanswered or reaches a generic voicemail greeting.

The Court’s ruling in Fontes reasoned that “in light of the close divide amongst the FCC commissioners and the fact that at least one commissioner believes the FCC’s ruling is ‘flatly inconsistent with the TCPA,’ there is a legitimate possibility that the Court of Appeals may overturn that ruling.”  Should the District of Columbia Circuit find that the FCC reached the wrong conclusion, such a ruling could be dispositive of the outcome not only in Fontes, but in all similar TCPA lawsuits involving reassigned numbers.  Given this ruling, similarly situated defendants should consider filing a motion to stay until a final determination on the issue is made by the District of Columbia Circuit.

Troutman Sanders LLP has unique industry-leading expertise with the TCPA, with experience gained trying TCPA cases to verdict and advising Fortune 50 companies regarding their compliance strategies.  We will continue to monitor regulatory and judicial interpretation of the TCPA in order to identify and advise on potential risks.