The Middle District of Tennessee denied a defendant’s summary judgment motion in a Telephone Consumer Protection Act (TCPA) case, clearing the way for a lawsuit claiming that the defendant was secondarily liable under an agency theory for calls made by a third-party call service even though a principal-agent relationship was disclaimed by contract.

On September 26, 2023, in Faulk v. Knoxville HMA Holdings, LLC., the plaintiff’s phone number was mistakenly entered into the system by defendant Dyersburg Hospital when an unaffiliated third-party patient registered for an appointment. The plaintiff alleged that he received voicemails of prerecorded messages intended for the third-party patient from March 8 through March 17, 2021. These calls were placed by Firstsource Solutions, USA, LLC (Firstsource), who the defendant contracted to contact uninsured patients regarding obtaining government or charitable assistance for medical bills.

The plaintiff contacted defendant Jackson-Madison County General Hospital (Jackson Hospital) and told the defendant’s representatives that the third-party patient could not be reached at the plaintiff’s number. The representatives stated that they would remove the plaintiff’s phone number. In June 2021, the plaintiff received a live call, and after informing the representative that the third-party patient could not be reached at that number, the representative stated that the plaintiff’s number would be removed and he should not receive any further calls.

Later that same month, the third-party patient again visited Dyersburg Hospital, and again the plaintiff’s phone number was mistakenly entered. Following this, the plaintiff received recorded messages for several weeks, finally ending the week of September 20, 2021. On October 1, 2021, the plaintiff filed suit alleging violations of the TCPA pursuant to 47 U.S.C. §§ 227(b) and (c), harassment under Kentucky Revised Statute § 525.070, and invasion of privacy under Tennessee common law. The defendants filed motions for partial summary judgment as to the § 227(c) and state law claims, and the plaintiff filed a motion for partial summary judgment as to his § 277(b) claim.

A magistrate judge filed a report and recommendation, recommending the court grant the defendants’ motions for summary judgment on the § 227(c) and state law claims and deny the plaintiff’s motion for summary judgment as to the § 227(b) claim. The plaintiff timely filed objections to the report and recommendation and the defendants responded. In considering the objections, the court addressed only the § 227(b) claim and the Kentucky § 525.070 claim.

The plaintiff contended that he was entitled to summary judgment on his § 227(b) claim because there was no genuine issue of material fact that Firstsource was an agent of Jackson Hospital which used prerecorded messages to call the plaintiff without his consent. The plaintiff argued that Firstsource’s promises to provide services in the master service agreement they signed with Jackson Hospital clearly displayed a principal/agent relationship. Conversely, Jackson Hospital referenced a different portion of the master service agreement, which clearly defined Firstsource as an independent contractor and stated no agency relationship existed.

The court ultimately determined that there was a genuine issue of fact as to whether Firstsource acted as Jackson Hospital’s agent when calling the plaintiff. Specifically, the court held that the existence of an agency relationship was a question of fact which required the weighing of evidence and evaluation of credibility, which are not appropriate at the summary judgment stage. For these reasons the plaintiff’s motion for summary judgment as to the § 227(b) count was denied.

A claim pursuant to Kentucky Revised Statute § 525.070(1)(e) requires showing that the defendants intended to intimidate, harass, annoy, or alarm the plaintiff, and that the calls to the plaintiff served no legitimate purpose. The plaintiff reasoned that because he told several employees that the third-party patient could not be reached at his number, the defendants therefore had imputed knowledge that they were calling the wrong number and a reasonable jury could thus infer intent to harass and lack of a legitimate purpose. The court rejected this argument finding that since Firstsource made the calls the court would have to assume that the defendants imputed knowledge from Firstsource. For these reasons the court granted the defendants’ motion for summary judgment as to this claim.