Current Subscriber Consent Required for Robocalls to Cellphones under TCPA: Eleventh Circuit | Practical Law

Current Subscriber Consent Required for Robocalls to Cellphones under TCPA: Eleventh Circuit | Practical Law

In Freddy D. Osorio v. State Farm Bank, F.S.B., the US Court of Appeals for the Eleventh Circuit joined the Seventh Circuit, the only other court to address the issue, in interpreting "called party" to mean the current subscriber in the context of Section 227(b)(1) of the Telephone Consumer Protection Act.

Current Subscriber Consent Required for Robocalls to Cellphones under TCPA: Eleventh Circuit

by Practical Law Intellectual Property & Technology
Published on 01 Apr 2014 • USA (National/Federal)
In Freddy D. Osorio v. State Farm Bank, F.S.B., the US Court of Appeals for the Eleventh Circuit joined the Seventh Circuit, the only other court to address the issue, in interpreting "called party" to mean the current subscriber in the context of Section 227(b)(1) of the Telephone Consumer Protection Act.
On March 28, 2014, in Freddy D. Osorio v. State Farm Bank, F.S.B., the Court of Appeals for the Eleventh Circuit reversed a district court's grant of summary judgment to defendant State Farm on Telephone Consumer Protection Act (TCPA) and other claims and remanded the case for further proceedings (No. 13-10951, (11th Cir. Mar. 28, 2014)). The court joined the Seventh Circuit in interpreting "called party," the person whose prior express consent is required for autodialed calls to cellphone numbers under the TCPA, to mean the current subscriber of the account. However, the Seventh Circuit ruling was in a case where the cellphone number had been reassigned. Under this ruling, a party making autodialed and prerecorded calls to cellphone numbers may be liable under the TCPA even where:
  • The cellphone number has not been reassigned.
  • The caller believes it has consent.
Osario sued State Farm for TCPA violations based on autodialed debt-collection calls made by State Farm's collection agency to Osario's cellphone number. The calls related to debts of Clara Betancourt, a woman with whom Osario lived, had a child and shared a cellphone account, and they were intended for Betancourt. Betancourt had provided the number to State Farm as contact information when she applied for car insurance and a credit card. Ruling on motions for summary judgment, the district court found that Betancourt had provided express consent for the calls and had the authority to do so in light of Osario's and her relationship and shared cellphone plan. Although Osario testified in his deposition that he asked State Farm to stop calling, the district court also ruled that consent cannot be revoked orally under the TCPA. Osario appealed, arguing in part that the district court erred in:
  • Finding that Betancourt had authority to consent to receiving autodialed calls on Osario's phone number.
  • Not finding that Osario had revoked consent.
The TCPA, in relevant part, makes it unlawful for a person to make any call to a telephone number assigned to a cellular telephone service (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 (47 U.S.C. § 227(b)(1)(A)(iii)). The Eleventh Circuit held that in this context "called party" means the current subscriber of the account, rejecting State Farm's argument that term should mean the call's intended recipient.
Given this interpretation, the court determined that Betancourt could not have consented to receiving the calls in her own right and that to fall within section 227(b)(1)(A)(iii)'s prior express consent exception, State Farm must show that it had Osario's consent, which it could do by showing that he and Betancourt had an agency relationship. The court also concluded that consent may be withdrawn orally under the TCPA. The court remanded the case for factual determinations on both issues.