Alert January 10, 2013

Ninth Circuit Amends Rules on the TCPA’s “Prior Express Consent” Provision

The Ninth Circuit has issued an amended opinion clarifying that “prior express consent” under the Telephone Consumer Protection Act means “consent to call a particular telephone number in connection with a particular debt that is given before the call in question is placed.” The TCPA prohibits calls made to cellular telephones using an automatic telephone dialing system or an artificial or prerecorded voice unless made for emergency purposes or “with the prior express consent of the called party.” This ruling offers protection to parties that obtain a debtor’s cell phone number even after the original transaction resulting in the debt has concluded.

Defendant argued the lower court erred in provisionally certifying a class because, in part, individualized issues of consent should have precluded a finding of typicality and commonality—some debtors might have agreed to be contacted at any telephone number, including numbers obtained after the original transaction. The Ninth Circuit originally rejected this argument. Relying on a 2008 FCC declaratory ruling, the Ninth Circuit held that “prior express consent is deemed granted only if the wireless telephone number was provided by the consumer to the creditor, and only if it was provided at the time of the transaction that resulted in the debt at issue.”  Defendant, along with amici, filed a petition for panel rehearing or rehearing en banc.  The Ninth Circuit denied the request, but amended the original opinion to substantially broaden its interpretation of “prior express consent.” Relying on the same 2008 FCC ruling, the Court clarified that the phrase means consent (1) tied to the particular debt, (2) to call a particular number, (3) that is given before the call in question. This suggests that consent may be given to any party—e.g., the original creditor, subsequent purchasers, debt collectors—and at any time before the subject call, so long as the consent is connected to the debt at issue.

This broader rule makes sense in light of the practical realities of modern business, where consumers may provide their cell phone numbers at varying times during the business relationship. The decision also leaves open the possibility that evidence of varied timing for consent may help defeat class certification, although the provisional certification was upheld in Meyer because PRA did not show “a single instance where express consent was given before the call was placed.”