Wait – I Got Prior Express Written Consent to Call! I May Still be Violating the TCPA?

Operating AgreementSo you think you know the Telephone Consumer Protection Act (“TCPA”) inside and out – and you have put all of the pieces in place to comply with its regulations.  You ensure that you – and any company working on your behalf – have prior express written consent before placing marketing calls to consumers’ landline and mobile telephones.  Therefore, you should not worry about a TCPA-based lawsuit, right?

Wrong – particularly when the issue of recycled telephone numbers arises.

The United States Court of Appeals for the Eleventh Circuit recently decided the issue after it was appealed from a Florida federal court in an action filed against Wells Fargo Bank, N.A. (“Wells Fargo”).

Is Prior Express Consent Negated When the Number is Recycled?

The plaintiff in the subject action alleged that Wells Fargo made over 1,000 autodialed calls to her cell phone number in violation of the TCPA.  Wells Fargo argued that it had called the subject telephone number to collect a debt from a former customer who had listed that number on a Wells Fargo account application (and, therefore, expressly consented to receive such calls).  The problem arose because the former customer no longer used the subject telephone number and the number was recycled and assigned to the plaintiff.

Wells Fargo argued: (i) it had no way of knowing that the subject mobile telephone number was recycled; (ii) the former customer never revoked his consent; and (iii) the former customer never advised Wells Fargo of his number change or requested that Wells Fargo cease calling the subject telephone number.  Wells Fargo further argued that for purposes of the TCPA, the former customer was the intended recipient of the call and, therefore, the “called party” within the meaning of the statute.

The lower court held that the “called party” for purposes of the TCPA was not the former customer, but the person actually called – the plaintiff – and granted partial summary judgment in plaintiff’s favor.

The 11th Circuit agreed that the plaintiff, the subscriber to the cell phone service, did not consent to receive calls from Wells Fargo and upheld the decision of the lower court.  It noted that before it rendered its decision, another panel of the same court, faced with the same question, held that the “called party” means the “subscriber of the cell phone service.”  We note that this action was not commenced as a putative class action.

What This Decision Means for Telephone Marketing Companies

Without significant cost and time, there isn’t much that you can do to determine whether a number that you have prior express written consent to call has been recycled.  Some courts suggest that an actual person (rather than an autodialer) should call each number to make that determination or that a company perform a reverse lookup to determine the current subscriber, but considering the tremendous number of calls that are generally placed in such calling campaigns, these often are not realistic options.  The light at the end of the tunnel, however, may be that in the class action context, the plaintiff may not in fact represent the interests of a large class of consumers.  Arguably, such a putative class action plaintiff would only represent consumers who received a call to a recycled telephone number that was obtained after the previous owner provided prior express consent to call.  This would present the opportunity for the defense to challenge the class on the class action “commonality” requirement and the appropriateness of the action as a class action in general.

If you are interested in learning more about this topic or need to review your telemarketing practices, please e-mail us at info@kleinmoynihan.com, or call us at (212) 246-0900.

The material contained herein is provided for informational purposes only and is not legal advice, nor is it a substitute for obtaining legal advice from an attorney.  Each situation is unique, and you should not act or rely on any information contained herein without seeking the advice of an experienced attorney.

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David Klein

David Klein is one of the most recognized attorneys in the technology, Internet marketing, sweepstakes, and telecommunications fields. Skilled at counseling clients on a broad range of technology-related matters, David Klein has substantial experience in negotiating and drafting complex licensing, marketing and Internet agreements.

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