On June 3, the United States Court of Appeals for the Ninth Circuit held that consent from the intended recipient of calls does not absolve an entity of liability under the Telephone Consumer Protection Act if the entity did not have the consent of the party actually called. This decision aligns with decisions from the Seventh and Eleventh circuits holding that consent of the intended recipient is not sufficient.
In N.L. v. Credit One Bank, plaintiff, through his guardian, brought a claim for violation of the TCPA against Credit One based on allegations that Credit One did not have his prior express consent to contact him using an automatic telephone dialing system. The facts showed that Credit One called plaintiff, an eleven year old boy, 189 times over a four-month period trying to collect on a past due debt of a Credit One customer. However, Credit One was unaware that its customer’s phone number had been reassigned to plaintiff. The district court case was tried and the judge instructed the jury that “[t]he law requires the consent of the current subscriber of the called phone, in this case [plaintiff’s mother], or the consent of the nonsubscriber, customary user of the called phone, in this case, [plaintiff].” Ultimately, the jury returned a verdict for plaintiff, finding that each of the 189 calls violated the TCPA.
On appeal, Credit One argued that it should not be liable to plaintiff “because the party it intended to call (its customer) had given consent to be called, even though the party it actually called had not.” In support of its argument, Credit One relied on the statutory purposes of the TCPA and the policy implications of holding companies that unknowingly call reassigned numbers. The Court did not find these arguments persuasive.
The Court’s analysis focuses on the natural language of the TCPA. The TCPA provides that it is “unlawful for any person . . . to make any call (other than a call made for emergency purposes or made with the prior express consent of the called party) using any automatic telephone dialing system or artificial or prerecorded voice.”
First, the Court highlights that “intended recipient” is not found anywhere in the text of Section 227. The Court then goes on to analyze the use of “called party” throughout Section 227. It notes that “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.” The Court notes that it would be odd if the exemption for calls made “with the prior express consent of the called party” refers to a “third person external to the potentially actionable communication,” i.e., the intended recipient.
Moving through Section 227, the Court highlights that 47 U.S.C. § 227(b)(1)(A)(iii) extends the prohibitions of Section 227(b)(A) to “any service for which the called party is charged for the call.” Reviewing this section, the Court notes that an intended recipient would never be charged for a call. Thus, it does not follow that “called party” means intended recipient. The Court also looked at Section 227(b)(2) which directs the FCC to prescribe regulations to implement the TCPA. Section 227(b)(2)(C) allows the FCC “to exempt from liability certain calls ‘that are not charged to the called party.’” Again, the Court emphasizes that a charge would only flow to the individual called, not the intended recipient.
Finally, the Court rejected Credit One’s argument that the FCC’s order creating a one-call safe harbor – which was later vacated by ACA International v. FCC – and the 2018 order approving the creation of a reassigned number database and accompanying safe harbor support a finding that called party should be interpreted to mean intended recipient. The Court found that the FCC orders weigh against a finding that called party means intended recipient because “[i]f a caller’s intent could defeat liability, the safe harbors would be unnecessary.”
This decision signifies another hurdle for TCPA defendants and highlights the need for the comprehensive database detailed in the 2018 FCC order.