The U.S. Court of Appeals for the Ninth Circuit has joined the Seventh and Eleventh Circuits in ruling that the “prior express consent” required by the Telephone Consumer Protection Act (TCPA) for autodialed calls to cellular phones must come from the current subscriber and not the intended recipient of the call.
In N.L. v Credit One Bank, N.A., the plaintiff received collection calls from the bank at his mother’s cellular phone number that had been reassigned to her from an individual who owed money to the bank on his credit card. That individual had given the bank his consent to be called at the reassigned number. The plaintiff sued the bank for the unwanted calls, asserting claims under the TCPA, California’s Rosenthal Act, and California common law for invasion of privacy.
The TCPA prohibits non-emergency autodialed calls to cellular phones unless made “with the prior express consent of the called party.” The bank had argued that the “called party” should be interpreted to mean the person who the bank intended to call rather than the person it actually called. Rejecting that position, the district court instructed the jury that the TCPA requires the consent of the current subscriber or the nonsubscriber who is a customary user of the called phone. The jury returned a verdict for the plaintiff on his TCPA claim, resulting in $500 in statutory damages for each of 189 collection calls, for a total of $94,500. While it also found for the plaintiff on his Rosenthal Act claim, the jury found for the bank on the plaintiff’s invasion of privacy claim.
In holding that the district court’s instruction complied with the TCPA, the Ninth Circuit relied on “the language of the TCPA itself.” Observing that the prohibition does not reference the “intended recipient” of the calls, the court stated that the bank’s argument “starts off in the backseat, for there is no obvious statutory text on which to ground an ‘intended recipient’ interpretation.” The court looked at other uses of the term “called party” in the TCPA and found that they “confirm[ed] that [the bank’s “intended recipient”] interpretation is not the best one.”
The Ninth Circuit also noted that the FCC has interpreted the term “called party” to mean the current subscriber rather than the intended recipient and that in ACA International v. FCC, the D.C. Circuit found that the Seventh and Eleventh Circuits’ decisions provided support for the FCC’s interpretation. In 2018, the FCC issued a notice announcing that it was seeking comments on several TCPA issues following the D. C. Circuit’s ACA International decision, including on how to interpret the term “called party” for calls to reassigned numbers.