9th Circuit Panel Holds Express Consent Does Not Offer Protection Under the TCPA When Unintended Person Receives the Call

Recently, the U.S. Court of Appeals for the Ninth Circuit held that express consent from the intended recipient of a call does not exempt a caller from liability under the TCPA when the incorrect person receives the call at issue. 

Under the TCPA, callers are prohibited from calling using an automated telephone dialing service (ATDS) or prerecorded messages unless it is for an emergency or they have received express consent from the called party.  In this case, the defendant repeatedly called the plaintiff’s phone number to collect past-due payments from the previous owner of the phone number who had, the court assumes, given express consent to receive such calls.  The eleven-year-old plaintiff received 189 calls from defendant in four months and subsequently sued under the TCPA, California’s Rosenthal Fair Debt Collection Practices Act, and for an invasion of privacy under tort law.

Despite proposals for alternate jury instructions from the defendant, the jury was instructed to determine whether the defendant had express consent from the current owner of the phone number.  The jury found for the plaintiff under both the TCPA and Rosenthal Act, but did not find an invasion of privacy.  The plaintiff was awarded the statutorily prescribed damages of $500 per call under the TCPA, totaling $94,500, plus $1,000 in statutory damages under the Rosenthal Act.

The Ninth Circuit panel upheld the jury verdict.  In reaching its holding, the three-judge panel applied the natural meaning of “called party” and considered what Congress did or did not mean by the term as used in the statute. The Ninth Circuit concluded that the private right of action provided for by the TCPA makes it clear that a “called party” must be the person who received the call, regardless of the intended recipient. 

In defining “called party” in this manner, the Ninth Circuit joins the Seventh and Eleventh Circuits.  The Third and D.C. Circuits have also expressed support for this interpretation.

Finally, the Ninth Circuit affirmed the district court’s definition of an ATDS as “equipment which has the capacity, one, to store numbers to be called; or two, to produce numbers to be called using a random or sequential number generator and to dial such numbers.” The court acknowledges that there is a circuit split on how ATDS is defined.  While the Second Circuit is in agreement; the Third, Seventh, and Eleventh Circuits view the Ninth Circuit’s definition of an ATDS as overly broad.