11th CIRCUIT RULES ON TELEPHONE CONSUMER PROTECTION ACT (TCPA)
The 11th Circuit Court of Appeals recently entered its long awaited decision on the called party issue under the Telephone Consumer Protection Act (TCPA). The 11th Circuit held the called party is the subscriber of the phone number called by the defendant.
Facts: Appellee claims Wells Fargo made multiple calls to her cell phone using an autodial system without her consent. The primary user of the cell phone was the appellee’s minor child “R.B.”. Appellee filed suit on behalf of “R.B.” and partial Motion for Summary Judgment regarding Wells Fargo’s liability. Wells Fargo claimed the former account holder was being called to collect a debt and had consented to these calls. Wells Fargo did not know that appellee was the new account holder and filed a Motion for Summary Judgment that the former account holder was the intended recipient and therefore the “called party.” The District Court held appellee and “R.B.” were the “called party” since they were the users of the cell phone and granted partial Motion for Summary Judgment.
• The “Called Party”: Under the Telephone Consumer Protection Act it is unlawful to make calls to a cell phone with an autodial system without the “called party’s” consent. There is no definition of the “called party” in the TCPA or in the FCC regulations. The court noted three potential definitions through statutory interpretation by plain meaning. “Called party” could mean the user of the cell phone, the actual recipient of the call, or the intended recipient of the call. In the statute, “Called Party” is used seven times in different contexts such as: the party who consents to the call, and the party who is charged for the call. The court discounted “called party” to mean intended recipient since the TCPA provides for damages, a five hundred dollar fine that does not require a showing of intent.
Legislative history suggests that “called party” means the recipient as stated in the House Report explaining the bill, “as soon as technically practicable after the called party hangs up, such [automatic dialing] machines automatically create a disconnect signal or on-hook condition that allows the called party’s line to be released.” The Seventh Circuit held “called party” to mean the subscriber at the time the call is made. The Seventh Circuit reasoned that “called party” as found in the statute clearly referred to the current subscriber as the “called party” and that the references to consenting parties cannot be construed. In congruence with legislative history and the Seventh Circuit’s holding, the Eleventh Circuit Court of Appeals held that “called party” means the subscriber.
Have you received unwanted calls to your cell phone? Have you asked the callers to stop calling you, but the phone calls haven’t stopped? Contact us for a free case review and evaluation of your potential claims under the Telephone Consumer Protection Act (TCPA).