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In a decision issued on June 3, 2020, the Ninth Circuit weighed in on who constitutes the “called party” under the Telephone Consumer Protection Act (TCPA) and agreed with the Seventh and Eleventh Circuits in holding that consent from the intended recipient of a call, as opposed to the party actually reached, is insufficient to avoid liability under the TCPA. The decision in N.L. v. Credit One Bank, N.A. is certain to be used by the plaintiffs’ bar in support of “wrong number” TCPA cases.

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The TCPA prohibits callers from calling individuals using an automatic telephone dialing system (ATDS) without the express consent of the “called party,” and provides for statutory damages of $500 to $1,500 per call.

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To collect past-due payments from a customer, a vendor for Credit One Bank, N.A (Credit One) made 189 automated calls to the phone number listed in Credit One’s system for its customer. Unfortunately for Credit One, the customer’s phone number had been reassigned to Sandra Lemos (Lemos), who in turn let her 11-year-old son N.L. use the phone as his own. Although Credit One had previously obtained consent to call the number from its customer, it did not have consent from N.L. or Lemos. N.L. sued Credit One in the U.S. District Court for the Eastern District of California, claiming that Credit One violated the TCPA by calling him using an ATDS without his consent.

Credit One asked the district court to instruct the jury that Credit One could not be liable under the TCPA if it had a good faith belief that it had consent to call the phone number. The district court refused and, instead, instructed the jury that for there to be consent under the TCPA, Credit One must have had the consent of the current subscriber (Lemos) or the nonsubscriber customary user of the phone (N.L.), and that consent from the intended recipient (Credit One’s customer) was not enough. The jury returned a verdict in favor of N.L. of $94,500 on the TCPA claim, and Credit One appealed to the Ninth Circuit.

The Ninth Circuit affirmed the district court’s jury instruction, holding that the consent of the intended recipient was not a defense to liability under the TCPA. The court noted that both the Seventh and Eleventh Circuits had already rejected the argument that consent from the intended recipient is a defense, and that the D.C. and Third Circuits have voiced support for this approach.

The court then reasoned that the ordinary and natural meaning of “called party” as used in the TCPA supported the interpretation that “called party” refers to the current subscriber or customary user of the cell phone. For example, the TCPA refers to the party “charged for the call” which could not plausibly be an intended recipient that was never reached.

The court also noted that previous Federal Communications Commission (FCC) orders weighed against Credit One’s position. For example, if the caller’s intent could defeat TCPA liability then FCC-adopted safe harbors for callers who rely on comprehensive reassigned number databases would become unnecessary.

The court rejected Credit One’s argument that callers would be helpless if “consent” did not include the consent of the “intended recipient.” The Ninth Circuit noted that “caller best practices” can facilitate detection of reassigned phone numbers, and that there are marketplace resources to better inform callers of reassigned phone numbers. The court also suggested that callers could first manually dial the number (such that the TCPA would not apply) to confirm that it still belonged to their customer before allowing the number to be called with an autodialer.

Finally, while holding that consent from the intended recipient is insufficient and repeatedly suggesting that the TCPA’s language suggested that consent must come from the subscriber (i.e., the person who pays the bill and is thus “charged for the call”), the court was careful, albeit in a footnote, not to decide whether consent must come from the subscriber, or whether the customary user of the phone would be sufficient.

In March 2019, the FCC issued a Final Rule amending the TCPA to create a comprehensive database for reassigned numbers (see our previous <a href="https://www.thompsonhine.com/publications/new-fcc-rule-creates-tcpa-reassigned-numbers-database">client update on that topic</a>), but that database is not yet operational (and may not be any time soon). As a result, the Ninth Circuit’s decision provides a stern warning to those who autodial—that at least in the Seventh, Ninth and Eleventh Circuits, a caller’s good faith belief that it has consent to call is not enough to avoid TCPA liability if the number has been reassigned. With the continued rise of TCPA cases, including an increased number of “wrong number” class actions, callers should be certain that the number they are dialing belongs to the person from whom they have consent before placing a call with an ATDS.

Jessica E. Salisbury-Copper 937.443.6854 <a href="mailto:Jessica.Salisbury-Copper@ThompsonHine.com">Jessica.Salisbury-Copper@ThompsonHine.com</a>

Scott A. King 937.443.6560 <a href="mailto:Scott.King@ThompsonHine.com">Scott.King@ThompsonHine.com</a>

Doori Song 216.566.5648 <a href="mailto:Doori.Song@ThompsonHine.com">Doori.Song@ThompsonHine.com</a>

This advisory bulletin may be reproduced, in whole or in part, with the prior permission of Thompson Hine LLP and acknowledgment of its source and copyright. This publication is intended to inform clients about legal matters of current interest. It is not intended as legal advice. Readers should not act upon the information contained in it without professional counsel.

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Ninth Circuit Agrees With Seventh and Eleventh Circuits Holds That Consent From Intended Call Recipient Is Not Sufficient to Avoid TCPA Liability

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