[author: Ronnie London]

Recently, the United States Court of Appeals for the Seventh Circuit issued a decision in Soppet v. Enhanced Recovery Company that could effectively impose strict liability for violations of the Telephone Consumer Protection Act (TCPA) restriction against unconsented automated and/or prerecorded calls to cell phones, even if the calling entity legitimately believed it had valid prior express consent to the calls.

The Soppet case involved calls by a debt collector to the two named plaintiffs, and sought to recover statutory damages for them and a class of similarly situated parties, for automated debt-collection calls to their cell phones.  The plaintiffs and putative class sued under the TCPA’s prohibition on autodialed and prerecorded calls to cell phones.  Under that statute, such calls are permitted only with prior express consent of the called party.

In defense, Enhanced Recovery relied on consent obtained by the creditor on whose behalf the calls were placed.  However, in the time since the creditor obtained consent for the phone numbers called, they were reassigned to the plaintiffs.  This, the court held, rendered the consent ineffective, because it did not come from the party to whom the number belonged at the time calls were placed, and it opened Enhanced Recovery (and, arguably, its creditor client) to TCPA liability.  As the statute allows $500 for each call in violation of the rules – trebled for willfulness – damages add up quickly, especially where, as here, a case is a potential class action.

The case is significant because it significantly ups the ante for automated and prerecorded call violations under the TCPA (especially in that even live-operator calls, i.e., non-prerecorded calls – which constitute most commercial calling – can trigger liability if auto- or predictively-dialed).  In this regard, companies that place automated and/or prerecorded calls typically “scrub” out cell phone numbers from their calling lists, and dial only those for which prior express consent has been obtained.  However, this is neither a static circumstance nor a foolproof safeguard.

For example, as in this case, the phone number may have been reassigned from the person who gave the consent to another individual.  Or, persons who from all outward appearances gave a phone number and consent may have in fact given a number that never belonged to them at all.  Instead, they may have misentered or otherwise erred in conveying their phone number, leading to a call to someone else, or they could even have purposefully given out a number that did not belong to them, either to avoid unwanted calls, or to purposefully redirect them to another individual.  Also, though it is uncommon, companies receiving phone numbers may inadvertently transpose digits or otherwise experience a data-entry glitch, causing a number other than that corresponding to the consent to be called.  Often, this disconnect between the phone number a company has, and the consent it believed it had associated with it, will not be known – and sometimes cannot be known – until after placement of the call(s) to the wrong party, who is in a position to correct this error.  But at the point, the call(s) occurred, and TCPA liability potentially attaches.

Courts have been split on whether TCPA liability attaches for such misdirected or wrong-number calls placed by a company that has a record of prior express consent associated with the number called, or whether the prior express consent exception nonetheless applies, and bars liability.  In Soppet (and in the trial court from which the appeal arose), the court held prior express consent could not save the caller from liability.  Instead, it reasoned, the called party never consented, and the individual who (in the case of Enhanced Recovery’s calls) previously furnished that phone number to the calling party and gave consent for the call could not consent on behalf of another.  The court reached this conclusion even though the caller may have no way of knowing the phone number had changed hands (or that the number given originally did not belong to the person who gave the consent, a context in which the court’s reasoning could apply equally).

This presents real concern for those who use, or have deployed on their behalf, automated dialing equipment to place autodialed and/or prerecorded calls that might reach cell phones.  In essence, the Seventh Circuit has held that such parties are strictly liable for calls that may reach someone other than the person who gave consent to the calls, even if, at the time the consent was obtained, that person was the legal owner of the phone number that was later called.  Users of automated dialing equipment now face having to find a way to confirm the consents they obtain remain valid – even if it is years later – at the time they place automated calls, or simply having to scrub all cell phone numbers, regardless whether consent has been obtained.  Given the long-standing and ever-increasing evolution away from wireline to wireless services, being forced to take such measures has a potential to make serious inroads into the pool of numbers available to be called.