The Federal Communications Commission refused to weigh in on the issue of Telephone Consumer Protection Act liability for reassigned cell phone numbers in a case pending before the Second U.S. Circuit Court of Appeals.

In the case before the court, a Jane Doe provided her cellular phone number to Mercy Hospital as a contact number in connection with her account. When her account became delinquent, the hospital entrusted the Mercantile Adjustment Bureau with collection and provided Jane Doe’s cellular phone number to MAB.

Without MAB’s knowledge, the phone number was recycled by the carrier and reassigned to Paul Sterling. MAB called Sterling 17 times with an automatic telephone dialing system. MAB subsequently stopped calling Sterling once it learned that the number had been reassigned. Although Sterling never spoke to MAB or requested MAB to stop calling, he filed a claim against MAB under the TCPA.

On cross motions for summary judgment, MAB argued that the phrase “prior express consent of the called party” as defined under the TCPA should be the intended recipient of the call—in this case, Jane Doe. In contrast, Sterling told the court that “the called party” requires the consent of the current subscriber of the number actually called.

Considering “the particular evils at which the legislation was aimed,” U.S. Magistrate Judge Jeremiah J. McCarthy issued a report and recommendation granting summary judgment to the plaintiff.

“[T]he ‘evil’ at which the TCPA was aimed was the ‘recipients[’] … invasion of privacy.’ Since Jane Doe no longer uses the cellular telephone number at issue, her privacy cannot possibly be invaded by MAB’s automated calls to that number, nor could her previous consent excuse the invasion of the current user’s privacy,” he wrote. “Congress found that ‘[b]anning such automated or prerecorded telephone calls … except where the receiving party consents to receiving the call … is the only effective means of protecting telephone consumers from this nuisance and privacy invasion.”

In light of that finding, Judge McCarthy concluded that MAB could not rely upon the consent of Jane Doe as a defense to Sterling’s TCPA claims. He added that his conclusion did not foreclose the use of predictive dialers. He suggested options like using a reverse lookup to identify the current subscriber of the number at issue, confirming with the creditor that the customer was still associated with the number, or having a person make the first call and then switching to a predictive dialer once the recipient’s identity has been verified.

“[T]he moral is that companies who make automated calls bear the responsibility of regularly checking the accuracy of their account records or placing intermittent live verification calls,” the court said, citing a Florida federal court decision.

A federal court judge accepted the report and recommendation and MAB appealed to the Second Circuit. The federal appellate panel turned to the FCC for insight on the following question: “Does the Telephone Consumer Protection Act’s prohibition on automated calls, absent prior consent from the called party, apply to a new and non-consenting user of a cellular telephone number previously assigned to a consenting user?”

In a letter brief, the Commission stated it “would like to assist the Court,” but offered two reasons why it would not take a position: first, the agency has yet to speak on the issue in any rules or orders, leaving litigation counsel unable to speak authoritatively; and second, multiple petitions are pending before the Commission on this very question. “Three different companies have petitioned the agency for a declaratory ruling to clarify whether a caller, having obtained prior consent to call a wireless telephone number, is liable under the Telephone Consumer Protection Act for placing autodialed calls to that number after the number has been reassigned from the consenting consumer to another consumer without the caller’s knowledge.”

As the Commission has yet to rule on the petitions, “it would be inappropriate for FCC litigation counsel to prejudge the agency’s ultimate disposition of this question in an amicus brief,” the FCC told the court.

To read the report and recommendation in Sterling v. Mercantile Adjustment Bureau, click here.

To read the FCC’s letter brief, click here.

Why it matters: While the FCC’s letter brief failed to provide clarity for either the Second Circuit or the industry on the question of TCPA liability for calls to reassigned numbers, it did highlight the fact that the issue is widespread and is currently being considered by the Commission. However, the magistrate’s report does provide some useful guidance for companies to consider before placing outbound calls to mobile phones that may mitigate the risk of calling reassigned numbers.