Robocalls to a Reassigned Cell Phone Number Impermissible under TCPA: Seventh Circuit | Practical Law

Robocalls to a Reassigned Cell Phone Number Impermissible under TCPA: Seventh Circuit | Practical Law

In Soppet v. Enhanced Recovery Co., the US Court of Appeals for the Seventh Circuit affirmed a district court decision that the phrase "called party" refers to the current subscriber of a cell phone number, and not the former subscriber, when determining consent under the automated calling provisions of the Telephone Consumer Protection Act (TCPA). The phrase is undefined under the statute and this is the first appellate court ruling addressing its use.

Robocalls to a Reassigned Cell Phone Number Impermissible under TCPA: Seventh Circuit

by PLC Intellectual Property & Technology
Published on 17 Jul 2013 • USA (National/Federal)
In Soppet v. Enhanced Recovery Co., the US Court of Appeals for the Seventh Circuit affirmed a district court decision that the phrase "called party" refers to the current subscriber of a cell phone number, and not the former subscriber, when determining consent under the automated calling provisions of the Telephone Consumer Protection Act (TCPA). The phrase is undefined under the statute and this is the first appellate court ruling addressing its use.

Key Litigated Issue

In Soppet v. Enhanced Recovery Co., the key issue before the US Court of Appeals for the Seventh Circuit was whether the phrase "called party" refers to a former subscriber or current subscriber of a cell phone number when determining consent to receive automatically dialed telephone calls under the Telephone Consumer Protection Act (TCPA).

Background

Teresa Soppet and Loidy Tang, certified representatives of a class action, both received numerous automatically dialed telephone calls on their cell phones from Enhanced Recovery Co., a debt collection service. These debt collection calls were intended to contact the individuals who had previously been assigned Soppet and Tang's cell phone numbers. While the individuals who previously had been assigned Soppet and Tang's cell phone numbers did agree to receive such calls, neither Soppet nor Tang provided consent.
Soppet and Tang filed suit against Enhanced Recovery Co. alleging violations of the TCPA, which authorizes an award of actual damages, or $500 per violation, whichever is greater, for contacting individuals via an automated telephone dialing system without their prior consent (42 U.S.C. § 227(b)(3)).
The district court held that only the consent of the individual assigned to the cell phone number at the time of the call justifies an automatic or recorded call, and certified its decision for interlocutory review by the Seventh Circuit.

Outcome

Focused on the language of the TCPA and the use of the term "called party," the Seventh Circuit affirmed the district court's decision on May 11, 2012.
The TCPA prohibits a person from making "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 any artificial prerecorded voice . . . (iii) to any telephone number assigned to a paging service, cellular telephone service . . . or any service for which the called party is charged for the call" (42 U.S.C. § 227(b)(1)).
Although the TCPA does not define the phrase "called party," the Seventh Circuit determined that Section 227 of the statute supports a finding that "called party" refers to the current subscriber of a cell phone number, in particular:
  • Subsection (b)(1)(A)(iii) contains the phrase "for which the called party is charged." The Seventh Circuit reasoned that "called party" must mean the current subscriber of the cell phone number because the current subscriber pays for calls.
  • Subsection (b)(2)(C) states that the FCC may issue regulations allowing automated calls to a cell phone when the calls "are not charged to the called party." Here, the Seventh Circuit found that the phrase "called party" was identical in use to subsection (b)(1)(A)(iii) and also referred to the current subscriber.
  • Subsection (d)(3), entitled Technical and Procedural Standards, also uses the phrase "called party" three times. The Seventh Circuit determined that the first and third uses of "called party" refer to the current subscriber of the called number; the second use refers to the person who answers the call, who, in most circumstances, is the current subscriber of the number.
In total, Section 227 refers to the phrase "called party" seven times. The court found that four instances refer to the current subscriber, one refers to the person who answers the call and the remaining two instances are unclear.
Employing the presumption that the statute uses this phrase consistently, the Seventh Circuit determined that "called party" must refer to, and consent to be contacted by an automatic dialing system must come from, the current subscriber.

Practical Implications

When using automatic telephone dialing systems, parties should take steps to verify that the individuals they are trying to reach remain the current subscribers of any provided cell phone numbers. For example, as contemplated by the Seventh Circuit in this case, a party may:
  • Have a live person make the initial call to a cell phone to verify the intended recipient is still assigned to the cell phone number.
  • Use a reverse look-up service to identify the current subscriber to a cell phone number.
If the calling party, such as a bill collector, is calling on behalf of another party, the calling party should consider:
  • Asking the party that initially obtained consent to verify the number still belongs to the intended recipient.
  • Obtaining indemnification in the event of an error.

Court Documents