Trap for the Unwary: Express Consent under the TCPA May not be Consent under the FDCPA

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It's always interesting to see the way the web of federal statutes fit together (or don’t) when regulating certain conduct.

Take debt collection calls for instance. It has long been held that a consumer that provides their phone number directly to a caller consents to receive automated informational calls from that caller in connection with the purpose for which the number was provided. That’s just common sense.

Further, it has been held that providing a phone number to a creditor operates as consent for calls by third-parties such as debt collectors. So far so good.

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And it has even been held that providing a number at time of admission to a hospital operates as consent for service providers working at that hospital—such as doctors—to call to collect debts from that hospital stay, including through third-party debt collection companies. Ok.

But just because consent for TCPA purposes can be so conveyed does not mean that consent for purposes of other statutes is equally durable or presumed.

In Russo v. POM Recoveries, Inc., 18-cv-5472 (JMA) (AKT), 2020 U.S. Dist. LEXIS 61949 (E.D.N.Y. April 8, 2020), for instance, a defendant is stuck in a suit for placing a telephone call directly to a number supplied by a consumer as part of a hospital visit under the Fair Debt Collection Practices Act, and not under the TCPA. Under the FDCPA it is unlawful to communicate with any third party regarding a consumer’s debt unless the consumer has provided their consent to such contact directly to the debt collector.

In Russo, however, the consent to call the number at issue—which turned out not to be the plaintiff’s number—was provided at time of admission to the hospital and not directly to the collection company. So whereas the collector had Plaintiff’s consent to call the number under the TCPA the call was yet not valid because consent to contact the number had been supplied through an intermediary and not directly as the law requires.

Notice all the little wrinkles here. In the first place, the caller presumably did not know it was contacting a third-party at all; it was merely trying to contact the consumer at the number provided. Yet the leaving of a voicemail at the subject phone number resulted in a communication with a non-debtor in violation of the FDCPA because the number turned out not to be the consumer’s number after all.

This means that a collector is at a double risk from wrong number calling using pre-recorded voice messages or ATDS: i) direct liability to the called party for making calls without consent under the TCPA; and ii) liability to the debtor for communicating without the specific consent required by the FDCPA. This is true although the FCC’s reassigned number database is still some months away.

Watch out!

Want to see how the FDCPA, TCPA, and FCRA play together? The iA Case Law Tracker can help you do that in less time than it takes to pour your morning cup of coffee.