When I first became fascinated with the TCPA about a decade ago now I was particularly enamored with the statute’s vague “called party” provision.
It seems simple enough. You cannot make a call using technology regulated by the TCPA without the express consent of the “called party.” Obviously, therefore, the “called party” is the person you are trying to reach right? How else could you make steady use of the defense?
The first few district court cases to address the issue concurred and determined that the “called party” was the “intended recipient” of the phone calls. Indeed, those early cases found that a Plaintiff actually had to be an intended recipient of a call to have statutory standing to sue under the TCPA. How about that?
But the case law evolved quite a bit. Beginning in 2012 the case law became badly fractured on the issue—what else is new—with district courts approving four different definitions of the phrase. The Seventh Circuit rather famously weighed in on the issue in Soppet–a Judge Easterbrook penned opinion– concluding that the “called party” was the current subscriber to the phone line—meaning that callers could never safely rely on the consent of a customer without first asking that customer who was paying for their phone! The Eleventh Circuit quickly followed suit in its decision in Osorio, and then all eyes turned to the FCC hoping that the Commission would clarify the meaning of the phrase once and for all. (Incidentally I spent much of 2014 and early 2015 flying back and forth to D.C. for meetings on the issue.)
In the meantime the courts moved sharply away from the idea that a Plaintiff had to be the “called party” to have standing to sue—standing turned on receipt of phone calls and only the proper application of the express consent defense turned on the identity of the “called party.”
Ultimately, the FCC determined that the “called party” was both a duality—either the current subscriber to the phone or the “customary user” of the phone line is a “called party” able to consent. Thus a caller could safely rely on a consumer to provide a phone number without probing for consent by the person or entity that paid for his/her phone. Then again, the caller was fully exposed to liability if the customer gave the wrong number or the number later changed hands without the callers knowledge.
The “called party” saga yet lives on, however, with the FCC issuing a Public Notice of its intent to re-opine on the meaning of the phrase following the D.C. Circuit Court of Appeal’s reversal of the FCC’s approach to the issue of recycled numbers (remember the old one call safeharbor?). In the meantime the courts remain split on who the “called party” really is and whether a caller can reasonably rely on the consent of a former subscriber when a phone number does change hands, and all the while we await the rollout of the critical reassigned number database that is inching toward completion.
It just goes to show that the more things change in TCPAWorld the more they stay exactly the same.
For instance, just this weekend (Saturday ruling anyone?) a court in Florida appeared to hold that a Plaintiff lacks standing to sue unless he is the called party—a ruling of a sort that hasn’t been seen in nearly a decade now. But the facts of the case explain the unusual result and really highlight how much fun calling people can be.
In Thompson v. Portfolio Recovery Assocs., Case No.: 19-cv-62220-SINGHAL/Valle, 2020 U . S . Dist. LEXIS 72971 (S.D. Fl. April 25, 2020) the debtor the caller was trying to reach decided to forward his calls to his cousin’s VOIP line for some reason. (The court literally notes that the debtor’s reason for forwarding the calls is “not relevant to this action”—but I’m just so very curious about it.) The cousin decided to sue the caller arguing that he had received calls intended for somebody else without his consent.
Yes, you read this right. Caller calls debtor. Debtor forwards calls to cousin. Cousin sues caller. Welcome to TCPAWorld.
Rather than argue, for instance, that it had not made calls to Plaintiff’s phone number the Defendant, apparently, decided to argue that Plaintiff cannot sue because he is not the “called party.” As noted above, however, under current case law arguing that Plaintiff is not the “called party” is like conceding you didn’t have the right person’s consent to place the calls. Not the best argument folks.
Nonetheless, in the context of Thompson it worked. The court re-cast the “called party” argument into a “maker of the call” argument somehow and that really benefited the defense. Specifically, the Court analyzed the facts and determined that it was the debtor—and not the caller—that had actually made the calls to Plaintiff’s phone number. The caller had called the cousin; not the Plaintiff. In non-technical vernacular, Plaintiff was not the “called party”—so no standing to sue and case dismissed. The Court holds:
Based on a commonsense approach to the facts in this dispute, PRA did not place phone calls to Plaintiff. PRA called Cousin. It hardly seems to be the case that the TCPA anticipated parties like Plaintiff would file suit against bona fide debt collectors for having called debtors who have re-routed their phone calls to other individuals.
One little bonus ruling here—the Court also concludes that debt collection calls are essentially exempt from the TCPA under Eleventh Circuit law. (Maybe I should have lead with that? Ha.)
In the Court’s view, only random or sequentially called numbers are actionable following Glasser and debt collectors, of course, do not use such equipment: “Indeed, as PRA notes, as a debt-collection company, it would make no business sense to call random or sequential numbers; PRA is not an advertising company.” So debt collection calls will virtually never be actionable under the TCPA in the Sunshine State. (But don’t get to excited Florida collectors—the state maintains some of the most robust consumer-protection laws in the nation. So watch out.)
All in all Thompson is probably not the big “called party” shift that we’ve been waiting for—the rule that callers can be strictly liable for calls faithfully made to wrong numbers provided by consumers is just gross—but it shows, once again, how difficult the TCPA can be to comply with in the real world. At least one court was willing to limit the expansive scope of the statute, however. Let’s see what the next one does.