Summertime Blues: Eleventh Circuit Doubles Down on Strict TCPA Liability for Texts and Autodialed and Prerecorded Calls to Cell Phones

by Davis Wright Tremaine LLP

Over the Spring, we reported on how the Eleventh Circuit’s decision in Osorio v. State Farm brought that court into alignment with the Seventh Circuit on how restrictions in the Telephone Consumer Protection Act (TCPA) on automated and/or prerecorded calls and texts to cell phones can effectively impose strict liability, even if a calling party believed it had consent for the calls. Now that Summer’s here, the Eleventh Circuit reaffirmed and reinforced its Osorio ruling, and aligned with the Seventh Circuit even more closely, by holding in Breslow v. Wells Fargo that where a company gets prior express consent to prerecorded-call and/or auto-dial or auto-text a cell phone, the caller can still be liable if at the time the call is made the cell number has been reassigned to a new subscriber who did not consent.

As in the Seventh Circuit case of Soppet v. Enhanced Recovery, which we discussed here, the calls at issue in Breslow involved efforts to collect on an overdue account, this time by Well Fargo, which believed it had consent to call the cell number which, at the time of the call, was used exclusively by Breslow’s minor son. Wells Fargo called the number because a former customer had listed it on an account application, and the company was unaware it had been reassigned from the former customer to the Breslows.

Wells Fargo argued the former customer—the intended recipient of the autodial call—was the “called party” for purposes of the Breslows’ TCPA suit, and that consent to the calls accordingly existed, and liability could not attach. But the Eleventh Circuit, noting that neither the TCPA nor the FCC defines “called party,” held that for purposes of the TCPA’s restrictions on calls (and texts) to cell phones – specifically, as used in the exception for calls with “prior express consent” of the “called party”—the term means the subscriber to the cell service or user of the cell phone at the time of the call. This applies regardless of whether the caller obtained consent from a prior holder of the phone number, and regardless of whether it was reassigned without the caller’s knowledge.

The court reached this decision, after finding the statutory text unclear on the point, based primarily on the TCPA’s legislative history, which dates back to the early 1990s. It also relied on the Seventh Circuit’s Soppet decision, which had reached the same conclusion, and had rejected arguments that (a) “called party” should mean intended recipient, and (b) the TCPA should evolve to reflect the way cell phones are used (and the frequency with which cell numbers are recycled). The Eleventh Circuit relegated to a footnote concerns that companies using autodialed calls or texts and/or prerecorded calls have no way of knowing if a cell number for which they have obtained consent is reassigned, taking essentially a “tough luck” stance. The court recognized not only that there is no guarantee that a customer will continue to use a particular cell phone, but that customers of a bank like Wells Fargo, who owe a debt, may get rid of a cell phone after receiving the first collection call just to avoid the debt. But the court simply said these burdens are the result of the most reasonable reading of how Congress wrote the TCPA, so there is nothing for the court to do about it.

The Eleventh Circuit Osorio decision effectively doubled the number of states where controlling precedent holds that companies using autodialed calls/texts or prerecorded-messaging to dial cell phones can assume risks beyond their power to avoid, short of eschewing cells altogether, and Breslow retrenches that disconcerting fact. This further ups the ante on petitions pending at the FCC to clarify this point, and magnifies what is just another worry for those subject to the TCPA, which is a source of very active—and often costly—litigation.


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Davis Wright Tremaine LLP

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