Antitrust Law Daily Wrap Up, PRIVACY—11th Cir.: Intended recipient not "called party" under TCPA, (Jun 6, 2014)

By Edward L. Puzzo, J.D.

A cell phone subscriber or user, not the intended recipient, is the "called party" under the Telephone Consumer Protection Act, the Eleventh Circuit U.S. Court of Appeals in Atlanta has ruled (Breslow v. Wells Fargo Bank, NA, June 5, 2014, Tjoflat, G.). Thus a creditor using an auto-dial system to call a cell phone number formerly held by its customer was liable under the TCPA to the current user of that cell phone number for unsolicited calls.

Plaintiff Lynn Breslow had brought a claim under the Telephone Consumer Protection Act (TCPA), alleging that defendant Wells Fargo had made multiple unsolicited auto-dial calls to her cell phone without her consent. Wells Fargo argued that they were not liable under the TCPA because their customer, not Breslow, was the intended recipient of the call regarding a debt owed to Wells Fargo, and their customer was therefore the "called party" for purposes of the TCPA. The federal district court in Miami ruled that Breslow was the "called party" and granted partial summary judgment in her favor. The case reached the appellate court on Wells Fargo's interlocutory appeal, seeking the appellate court's determination of the proper definition of the term "called party" as used in the TCPA.

The TCPA prohibits the use of an automatic telephone dialing system to make calls to cellular phones without the express consent of the "called party." The term is ambiguous and not directly defined in the statute or regulations, the appellate court stated. Some of the possible reasonable interpretations for the term "called party" include: 1) the cell phone account-holder, 2) the authorized user of the cell phone, 3) the actual recipient of the phone call, and 4) the intended recipient of the phone call. In this case, the cell phone account-holder was the plaintiff Lynn Breslow, the authorized user and actual recipient of the calls was Ms. Breslow's minor child, and the intended recipient was Wells Fargo's customer.

Statutory interpretation. Using principals of statutory interpretation, the court attempted to discern he meaning of the term within the broader context of the statute. The court ruled out the "intended recipient" as the called party, because intent was only referred to by the statute when determining damages, not liability. However, the statute did use the "called party" term inconsistently, in one part appearing to refer to the phone subscriber, and in other part appearing to refer to the actual call recipient. Due to the statutory inconsistency, the court next turned to legislative history.

Legislative history. The legislative history, stated the court, indicates that "called party" usually refers to the recipient of the call, although it sometimes referred to the subscriber or user of the phone. The legislative history, however, offered no support for Wells Fargo's position that "called party" meant "intended recipient," the court opined.

Other circuits. The Seventh Circuit's consideration of this issue concluded that "called party" for TCPA purposes was the current subscriber or user of the phone number. That court rejected the argument that consent remained effective until the new person who is assigned the number revokes consent, because there was no property right in a phone number.

FCC. A declaratory ruling by the FCC stated that providing a cell phone number to a creditor reasonably evidences express consent to be contacted at that number regarding the debt. It does not follow, stated the court, that a creditor may continue to call that number after it is no longer used by the customer. The burden remains on the caller to ensure that the consent remains valid.

For these reasons, the court rejected Wells Fargo's argument that "called party" refers to "intended recipient." The court therefore affirmed the lower court's partial summary judgment in favor of plaintiff Breslow.

The case is Civil Action No. 12-14564.

Attorneys: Scott David Owens (Owens Law Office) for Lynn Breslow. Jan T. Chilton (Severson & Werson), and Elliot Aaron Hallak (Fox Rothschild, LLP) for Wells Fargo Bank, NA.

Companies: Wells Fargo Bank, NA

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