It is probably the second most frustrating rule in TCPAWorld (behind officer liability): a caller trying to call a customer can be held strictly liable to a new subscriber when that phone number changes hands, even if the caller had perfectly valid consent and no idea the number recycled.
Making matters worse, this really should not be the rule—and not just because of the unfairness of the whole thing. As I have explained many times on the speaking circuit and on TCPAWorld, ACA Int’l set aside the FCC’s one-call recycled number safeharbor because it did not afford callers enough protections—not because callers are supposed to be held strictly liable for calls to numbers that recycle without their consent.
Here’s what I mean: In 2015 the FCC determined that callers have the right to “reasonably rely” on the consent of a previous subscriber’s consent when a number recycles—albeit for one phone call. The D.C. Circuit Court of Appeal subsequently determined that one call was simply not enough notice for callers to be found to have stopped acting “reasonably” and set aside the FCC’s one call safeharbor as arbitrary and capricious. Following ACA Int’l, therefore, there should be no dispute that a caller can rely on the consent of a prior subscriber to a cell phone when that number changes hands without the callers knowledge. Indeed, ACA Int’l set aside the FCC’s old one-call safe harbor precisely because the it wasn’t safeharboury enough—not because callers are to be held strictly liable for such calls. So there ought not be any argument that callers remain strictly liable for calls to recycled phone numbers—both the FCC and the D.C. Circuit Court of Appeals have completely rejected that approach.
Nonetheless, as of the end of 2019 only one court had squarely held that a caller has the right to rely on a previous subscriber’s consent— Stewart L. Roark v. Credit One Bank, N.A., No. CV 16-173 (PAM/ECW), 2018 WL 5921652 (D. Minn. Nov. 13, 2018). And, frustratingly, numerous courts have continued to hold callers strictly liable for calls made to recycled phone numbers—depriving them of the one call safe harbor the FCC afforded such callers in 2015, without affording the protection of “reasonable reliance” that ACA Int’l plainly intends. This is bad legal doctrine folks—almost as bad as allowing officers to be held directly liable for trying to comply with the TCPA.
But we may have finally turned a corner. 2020 vision and all that.
In Sandoe v. Boston Sci. Corp., Civil Action No. 18-11826-NMG, 2020 U.S. Dist. LEXIS 2800 (D. Mass. Jan. 8, 2020) the Defendant allegedly made autodialed calls to a wrong number after the party who had provided their number to the Defendant—and thereby consented to calls—stopped using their number without the caller’s knowledge. The number recycled to the Plaintiff, who quickly decided to seize upon the opportunity afforded by a wrong number phone call and filed a TCPA class action against the Defendant.
The Defendant moved for summary judgment arguing that it reasonably relied on the consent of the prior subscriber. The Plaintiff, of course, argued that no right to reasonable reliance exists and no safe harbor exists for wrong number calls after ACA Int’l. The Court granted the motion and awarded Defendant judgment on the TCPA claim recognizing that the Defendant, indeed, has the right to rely on the consent of the prior subscriber.
In Sandoe the Court first recognized that the FCC indeed had allowed callers to rely on the consent of prior subscribers in its TCPA Omnibus ruling back in 2015. Although the FCC determined that the reasonable reliance terminates following a single call, the D.C. Circuit Court of Appeal determined the one-call restriction to be “arbitrary and capricious.” The Sandoe court goes on to acknowledge that a right to reasonable reliance is not found within the text of the statute, but the FCC is not bound by the text—its determination that a caller can reasonably rely in these circumstances is “persuasive.” This is especially so as there was simply no way for the Defendant to know the number had changed hands:
This Court declines to contravene the FCC’s regulation by interpreting the TCPA as requiring callers to do what the competing expert reports in this case demonstrate is either impossible, or at least highly unreliable.
Perhaps equally importantly, the court refused to impose any sort of burden of confirmation on the Defendant before it made calls:
Indeed, given the difficulty and unreliability associated with matching telephone numbers to subscribers, it is unclear what additional investigation [Defendant] could have reasonably been expected to perform before calling the numbers provided by the clinics.
In the view of the Sandoe court at least, therefore, relying on vendor solutions hoping to confirm subscribership information is entirely unnecessary for purposes of taking advantage of the right to ‘reasonably’ rely on a former subscriber’s consent. How about dem apples?
Notably the calls at issue were health care related. Hence only regular express consent—not written express consent—was required since the FCC has exempted health care messages from requiring written consent, even if they are ultimately driven by sales. Moreover, since the texts merely invited individuals to attend a seminar the Court found they did not constitute telephone solicitations for DNC purposes (but tread carefully on this last piece as many courts have found there’s no such thing as a free lunch in TCPAWorld.)
A couple more notes:
- The FCC’s recycled number database (really a permanent disconnect database) is still a few months from implementation (or more)so the risk of TCPA liability for calling recycled phone numbers remains immense.
- This is the same court that recently rejected certification in this same case in a big win forDefendant’s hoping to defeat wrong number certifications based on self-identifying affidavits.
So score one for the good guys TCPAWorld. If you—or your counsel— have any questions about how this defense works feel free to reach out and I’m happy to discuss it further.
Unrelated, I know it was a bit of a stretch but my boys are really into fishing right now–hence the pic.