FCC Reinforces that Those Who Knowingly Release Cell Numbers Grant Permission to be Called Under the TCPA--But Companies May Still Be Required to be Sure They Get the Number Directly from the Person to be Called

by Davis Wright Tremaine LLP

We recently reported on two FCC declaratory rulings interpreting the Telephone Consumer Protection Act (TCPA), in the context of social-network text messages and package-delivery calls, that included broad, business-friendly statements that should help clarify TCPA rules for prior express consent to autodial, prerecorded-call and text cell phones. We noted that in one ruling, the FCC in some respects revived  a position staked out in 1992, in originally implementing the TCPA, that “persons who knowingly release their [cell] phone numbers have… given their invitation or permission to be called” there, an allowance whose viability had become less clear as TCPA precedent evolved. Shortly after the declaratory rulings, we also advised on the Eleventh Circuit’s Osorio v. State Farm decision, which increased the number of states in which the TCPA is interpreted as imposing strict liability on those who direct automated and/or prerecorded calls to cell phones under a mistaken belief they have prior express consent to do so. Now another case extends the Osorio analysis to potentially up the ante again.

Osorio built on a Seventh Circuit ruling in Soppet v. Enhanced Recovery (discussed here), which was the first appellate decision imposing strict liability. In Soppet, Enhanced Recovery placed automated debt collection calls to cell phone numbers that a creditor obtained in the course of the transaction giving rise to the debt, which generally is permissible under a 2008 FCC declaratory ruling. However, in the time between the original transaction and the debt accruing, the cell phone number was reassigned to an unrelated third party, whom Enhanced Recovery called. Even though callers generally have no way of knowing of such reassignments, the Seventh Circuit held Enhanced Recovery could be liable, because the consent that had been obtained did not come from the party ultimately called.

Osorio recently raised those stakes, holding that State Farm could not get out of a TCPA lawsuit on a motion to dismiss, because a question of fact arose about right to give consent for the cell phone number it had called. Osorio’s live-in partner had given Osorio’s cell phone number to State Farm in the course of transaction that led to the partner’s debt to State Farm, on which the company used autodialed calls to try to collect. The trial court held there was consent, because State Farm had gotten the cell number in the course of the transaction with the party who gave it to the company, but the Eleventh Circuit reversed, holding it was an open question whether the domestic partner had authority to give State Farm the phone number (despite the couple living together, raising their child together, and subscribing together to the same phone company).
Now comes a decision out of the federal District Court in New Hampshire—which is in neither the Seventh nor the Eleventh Circuits—in Lamont v. Bob’s Discount Furniture, which follows Osorio. In Lamont, Ms. Lamont gave her and her husband’s cell phone numbers to Bob’s in the course of purchasing furniture that would be delivered to the couple’s home. The company made several autodialed calls to both cell phones involving delivery times/dates. The court held Ms. Lamont’s provision of her cell phone number to Bob’s as part of the furniture transaction created prior express consent for calls to her number, but for the husband’s number, a question of fact existed on whether Ms. Lamont had authority to give out, and thus consent for, Mr. Lamont’s cell number— thus the Lamonts’ case could go forward.
Lamont is encouraging in some respects, as it shows the continuing trend of courts accepting a person’s provision of their cell phone number in transacting business with a company qualifying as prior express consent under the TCPA for purposes of non-marketing autodialed, prerecorded, and text calls. That is the same place the FCC’s statement in the recent declaratory ruling winds up (even if Lamont does not cite it). But Lamont is also troubling in building on Osorio (and, in turn, Soppet) to allow potential liability, even where one spouse gives the other’s cell phone number to a business, and the business relies on that as consent to autodial, prerecorded-call, or text the cell number.
These decisions underscore the importance of companies who intend to place such calls being sure they are getting the cell number directly the person they intend to call. Alternatively, steps might be taken to get explicit assurances that the person has authority to allow the use of all phone numbers he or she is providing—but even that may not be enough to overcome an objection after a call to the person who’s cell number has been furnished. It bears watching to see how these “apparent authority” cases evolve.

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Davis Wright Tremaine LLP

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