Alert June 10, 2014

Eleventh Circuit Rules on Alleged Violations of the Telephone Consumer Protection Act

Joining the Seventh Circuit, the United States Court of Appeals for the Eleventh Circuit ruled that the term “called party” in the Telephone Consumer Protection Act means the party who actually received the call, not the party whom the caller intended to call. The TCPA prohibits, among other things, 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.” A former bank customer, consented to be called at the number provided, but by the time the lender called the number to attempt to collect a debt, the number had been transferred to another person. The actual recipient of the call was a minor, whose mother bought him the account and sued on his behalf arguing that neither she nor her son consented to be called concerning the debt incurred by the former holder of the telephone number. The lender argued that it intended to call the former customer, and the term “called party” in the TCPA should be construed as the call’s intended recipient.

The Eleventh Circuit affirmed the lower court’s ruling that the called party was not the former customer, but the person who actually received the call. Noting that the term “called party” is not defined in the TCPA or its implementing regulations, the Court examined its use within the TCPA, but did not find a clear answer. The Court then turned to the broader statutory context.  Examining the private right of action provision granted in the TCPA, the Court adopted plaintiff’s argument that, because the statute conditioned damages on the caller’s intent but did not so condition liability, the intent of the caller, while pertinent to damages, was irrelevant to liability. The Court also considered the legislative history, which focused on the disruptive effect on calls to the actual recipients. The Court also cited a regulatory impact statement summarizing the bill as requiring “the prior express consent of the recipient of the call.” According to the Court, the impact statement was the most conclusive indication of legislative intent that the term “called party” means the party that was actually called. Of note, the Eleventh Circuit agreed with the Seventh Circuit, the only other Circuit to have addressed this issue, in Soppet v. Enhanced Recovery. 679 F.3d 637 (7th Cir. 2013) which held that “called party in [the TCPA] means the person subscribing to the called number at the time the call is made,” and thus “called party” could not simply mean “intended recipient.”