Eleventh Circuit Imposes Liability on Autodialed Calls and Defines TCPA Language

The Eleventh Circuit Court of Appeals recently reversed a district court’s decision to grant summary judgment in favor of a debt collector in a Telephone Consumer Protection Act (“TCPA”) case.  In its decision, the Eleventh Circuit provided further clarification on the Act’s definitions of “prior express consent” and “called party” and stressed the importance of verifying cellular telephone ownership before contacting a person attempting to collect a debt.

In Osorio v. State Farm Bank, F.S.B., Clara Betancourt applied for a State Farm credit card and listed the cell phone number of her long-time partner Fredy Osorio in the application.  Later Betancourt failed to make timely minimum payments on her credit card account.  Subsequently, State Farm hired a debt collector to garnish the payments, who placed 327 autodialed calls over the six month period to Osorio’s cell phone number.  Osorio filed a lawsuit claiming that even though Betancourt was his girlfriend, she did not have the authority to consent on his behalf to receive debt collection calls on his cell phone number.  Moreover, if Betancourt had such authority, Plaintiff revoked that consent later during his telephone conversations with the debt collector.

The TCPA claims in this case were dismissed by the trial court, granting summary judgment in favor of State Farm.  Osorio appealed and the Eleventh Circuit Court reversed the trial court’s decision.

Below are several takeaways from Eleventh Circuit decision:

  1. Prior express consent must come from the called party.  The Eleventh Circuit addressed the meaning of the term “called party” and held that the term refers to the actual current subscriber of the cellular phone number.  In this determination the Court sided with the Seventh Circuit’s decision in Soppet v. Enhanced Recovery Company, LLC.  The Eleventh Circuit also agreed with the Seventh Circuit in that called party does not refer to the intended recipient of the phone call.  The Eleventh Circuit stated: “…we believe this really means that Betancourt had no authority to consent in her own right to the debt-collection calls to [Osorio] because one can consent to a call only if one has the authority to do so, and only the subscriber (here, Osorio) can give such consent, either directly or through an authorized agent.”
  2. Prior express consent may be given by the agent of the called party.  Even though the Court did state that one adult might authorize another to give consent to make calls to their cellular telephone number in some circumstances, the Court found that long-term relationship between Betancourt and Osorio was not sufficient to provide Betancourt an authority to give State Farm consent on behalf of Osorio to call his cell phone.
  3. Oral revocation of prior express consent by the called party is allowed.  The Court noted that even though the Fair Debt Collections Practices Act (“FDCPA”) requires a consumer to notify the debt collector in writing if they do not wish to be contacted by the debt collector, the TCPA does not contain the same language.  Also, the Eleventh Circuit agreed with the Third Circuit’s decision in Gager v. Dell Financial Services, LLC, which states: “in light of the TCPA’s purpose, any silence in the statute as to the right of revocation should be construed in favor of consumers.”
  4. TCPA violations can occur if a cell phone call has been placed- it is not necessary for a charge to incur.  The Eleventh Circuit held that a TCPA violation still occurs even if the call placed was not charged: “To state the obvious, autodialed calls negatively affect residential privacy regardless of whether the called party pays for the call.”  In support of its decision, the Court relied on the Act’s definition -- that it prohibits autodialed calls “to any telephone number assigned to a paging service, cellular telephone service, specialized mobile radio service, or other radio common carrier service, or any other service for which the called party is charged for the call.”  The Court was convinced that the phrase regarding charges is related to the previous phrase and not to the whole definition.

In light of this decision, debt collectors should verify the current ownership of all cellular phone numbers they are currently calling or are intending to call.  These actions will help protect debt collectors from TCPA liability risks that are related to calling shared cell phone numbers, recycled number or wrong telephone numbers.  For more information you may contact Joe Messer at (312) 334-3440 or at jmesser@messerstrickler.com and Stephanie Strickler at (312) 334-3465 or at sstrickler@messerstrickler.com.