The meaning of "called party" under the Telephone Consumer Protection Act (TCPA) has not always been understood by telemarketers and debt collectors. In 2012, the Seventh Circuit, finally addressed the meaning of the term "called party" in the case Soppet v. Enhanced Recovery Co. in relation to “prior express consent.”
In Soppet, in order to collect on two debts that were owed to AT&T, a predictive dialer was used by a debt collector to place 45 calls to two different cell phone numbers. The debtors had provided these phone numbers to AT&T. However, when the debt collector attempted to collect on these debts nearly three years later, the phone numbers had been reassigned to people who had not provided their consent to receive automated or recorded calls from the debt collector.
The District Court in this case rejected the debt collector's defense that the debtors' consent satisfied the requirement of "prior express consent" under the TCPA. This court held that "only the consent of the subscriber assigned to the [the cell phone number] at the time of the call (or perhaps the person who answers the phone)" can be considered "prior express consent." The Seventh Circuit agreed with the District Court, holding that the TCPA does not support the definition of “called party” to mean the "intended recipient of the call." Rather the definition of "called party" means the current subscriber of the phone at the time the call was made. Therefore a creditor is not authorized to continue to make calls to that number after it has been reassigned to another person.
In another decision on the definition of a "called party" out of the "]Eleventh Circuit, the court ruled that under the TCPA, the "called party" is the subscriber to the cell phone service or the user of the phone.
In the case Lynn Breslow v. Wells Fargo Bank, N.A., Wells Fargo made calls to the plaintiff's child's cell phone. Wells Fargo argued that since the cell phone number had previously belonged to a former customer, who Wells Fargo considered the "called party," and that the "called party" never revoked his consent that they could call the phone using an automated dialing service. However, the court found that the plaintiff and her child were the actual "called party" since they were the "subscriber to the cell phone service or user of the cell phone called."
Wells Fargo appealed this decision and argued that its intention was to call the prior owner of the phone number, who had given consent to be called. The appeals court stated that the TCPA does not define the term "called party," leaving the court to interpret its meaning. Given that a defendant could be liable for a $500 penalty for each violation of the TCPA, and a higher penalty if the caller acted willfully, the court found that the term "called party" does not mean the intended recipient of the call.
Use of the term by Congress suggests that it intended it to mean the subscriber or the user of the phone that was called, not the intended recipient of the call. The court also referenced the Seventh Circuit decision mentioned above, agreeing with the "called party" is the person who subscribes to the telephone number and that it is not for the court to make "substantive" changes to the law, or to "keep the statute up to date."
Our experienced attorneys here at Krohn and Moss Consumer Law Center have also provided many helpful resources regarding the Fair Debt Collection Practices Act and how debt collectors should act. For more information, click here to learn more about this act and how it can help you.
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