The Eleventh Circuit Court of Appeals has defined the term “called party” under the Telephone Consumer Protection Act of 1991 (TCPA) as the subscriber to the cell phone service or user of the cell phone called, regardless of who the creditor intended to call. In Breslow v. Wells Fargo Bank, N.A., 2014 U.S. App. LEXIS 10457 (11th Cir. June 5, 2014), the defendant-creditor did not have consent from the “called party” to autodial the cell phone number because the consent was obtained from the party that formerly had the cell phone number that was called. The Eleventh Circuit affirmed summary judgment on liability in the called party’s favor.
A caller does not violate the TCPA if the caller has the express prior consent of the “called party.” Neither the TCPA nor the regulations promulgated by the Federal Communication Commission define the term “called party.” Debt collectors and other types of callers have argued that “called party” means the “intended recipient” of the call. The Eleventh Circuit rejected this argument and held that any person who answers the phone may have stated a claim against the caller under the TCPA.
At least one recent petition is pending before the Federal Communication Commission for a ruling that defines the term “called party.” Until such a ruling is made, debt collectors and other covered entities should attempt to obtain and verify prior express consent in writing before placing a call.