Circuit Court Rules for Consumer in TCPA Express Consent Appeal

Don Maurice

The Telephone Consumer Protection Act (TCPA) requires a call placed to a cellular phone using an autodialer to have the prior express consent of the person who received the call, the Eleventh Circuit Court of Appeals held this past Friday.

In Osorio v. State Farm Bank, debt collection calls were made to a cellular phone line subscribed to by Fredy Osorio.The intended recipient of the calls was Osorio’s long-time cohabitant, Clara Betancourt.  Betancourt had previously applied for car insurance from State Farm and at the same time applied for and received a credit card from State Farm to which her car insurance premiums were charged.

Betancourt’s insurance application to State Farm listed Osorio’s cell phone as her “work” telephone. In her credit card application, she identified Osorio’s cell phone number as being her own cell phone number. Betancourt testified that she later spoke with a State Farm representative during which she provided a different cell phone number. She also testified that during that same conversation she advised State Farm that Osorio’s cell phone number was to be used “only for emergencies.”

Betancourt’s separate cell phone was also included within Osorio’s cell phone plan.

Prior Express Consent and the “Called Party”

The trial court had entered judgment in favor of State Farm dismissing the TCPA claim. The trial court reasoned that if it held otherwise, “debt collectors would be held liable whenever a debtor lists a family member’s number as his own.” The trial court also found that when Betancourt provided Osorio’s cell phone number to State Farm, she could do so because “she lives with Osorio, had a son with him, and shares a cell-phone plan with him that is listed in [Osorio's] name.”

The Eleventh Circuit disagreed with the trial court’s reasoning. It found that the TCPA section applicable here only permits State Farm to call a cell phone using an “automatic telephone dialing system or an artificial or prerecorded voice” when it has obtained the prior express consent of the “called party.” The called party here, the Eleventh Circuit concluded, was Osorio, who had never provided State Farm with consent to call his cell phone.

The court here adopts the rationale of the Seventh Circuit’s holding in Soppet v. Enhanced Recovery Co., LLC, 679 F.3d 637 (7th Cir. 2012). There, a debt collector used an automatic telephone dialing system to make a call to a cellular number which had been provided by the debtor to the creditor. Unfortunately for the debt collector, by the time it began its debt collection activity, the cell phone number provided by the debtor had since been reassigned to a third-party. That third party began to receive the collection calls on her cell phone.

Prior Express Consent Can Come from the Called Party’s Agent

The Eleventh Circuit did not foreclose the possibility that prior express consent can come from a person other than the called party. One way State Farm could demonstrate the necessary authority, the court suggested, is under the common law of agency. An example it provided was if Osorio had permitted Betancourt to give consent for him to receive calls intended for her on his cell phone. Under common law agency, Betancourt would then have sufficient authority to give Osorio’s prior express consent to State Farm.

However, the appeals court found that the facts before it were insufficient to allow it to rule on this issue for either party and remanded the case to the trial court. It rejected the trial court’s finding that Osorio’s and Betancourt’s long-term cohabitation was itself sufficient to provide Betancourt with the needed authority. “Parents and cohabitants everywhere would be shocked to learn that every adult in their household is legally entitled to consent to having autodialing debt collectors call any of their cell phones,” said the appeals court. However, there can be circumstances where “one adult might authorize another to do so,” it added.

The case was remanded back to the trial court for a jury to decide whether Osorio had provided Betancourt with authority to give his “prior express consent” for State Farm to contact his cell phone.

Prior Express Consent Can be Orally Revoked

The Eleventh Circuit also adopted the reasoning of the Third Circuit Court of Appeals, and held that the TCPA permits a person to orally revoke their prior express consent.

Calling a Cell Phone is Sufficient, a Charge Does Not Have to be Incurred

The appeals court also interpreted the TCPA as prohibiting calls to a cell phone, regardless of whether the called party is actually charged for the call.

Fueling Another Rush of TCPA Litigation

Although this decision is fact-sensitive and leaves intact the concept of prior express consent coming from someone other than the “called party,” it will likely further the efforts of many who are finding TCPA litigation a lucrative enterprise.