Wrong number cases continue to be a major driver of individual and class action TCPA litigation. The absence of a reliable and cost-effective method to determine when a phone number is reassigned creates significant compliance challenges and litigation risk for callers. However, a recent common-sense ruling from the District of Massachusetts provides a ray of light, and hopefully is indicative of a growing trend amongst lower courts.
Essential Background Regarding Reassigned Number Rules
- In 2015, the FCC issued its omnibus order providing a one-call safe harbor for reassigned numbers reasoning that callers had the right to reasonably rely upon the consent of the prior subscriber;
- In 2018, the D.C. Circuit set aside the FCC’s treatment of reassigned numbers. While the court agreed with the FCC’s reasoning that callers had the right to reasonably rely upon prior subscriber consent, it found that provisioning a safe-harbor limited to just one call constituted arbitrary rulemaking;
- Following ACA International, lower courts have grappled with the appropriate standard to apply when evaluating consent in the context of a wrong number case;
- The FCC has undertaken to reconsider its prior rulemaking concerning reassigned numbers, but has not issued any new rules to date;
- While the FCC has not set out any new rules concerning reassigned numbers, it has engaged in rulemaking that has set up a general framework for a national reassigned number database, which is scheduled to go live later this year. While that may provide some concrete tools to detect reassigned numbers at some later point in time, the current landscape remains uncertain on this issue.
Massachusetts District Court Holds Callers Have the Right to Reasonably Rely Upon the Prior Subscriber’s Consent
In Sandoe v. Bos. Sci. Corp., No. CV 18-11826-NMG, 2020 WL 94064 (D. Mass. Jan. 8, 2020) Plaintiff alleged that he received prerecorded calls from Defendant without his consent. The prerecorded calls were intended for one of Defendant’s patients whose number was reassigned after the patient had given the Defendant consent to call. Defendant argued that it was not liable under the TCPA because it was reasonably relying upon its client consent when making the calls. Plaintiff took the position that reasonable reliance was not a valid defense.
In examining the issue, the court found that “[a]lthough the text of the TCPA does not provide for reasonable reliance, this Court finds persuasive the FCC’s order emphasizing that the TCPA does not require the impossible of callers. It is unclear what else, if anything, Boston Scientific could have done to ensure the numbers of [the clinic patients] had not been reassigned.” Of note, the court commented that the competing expert reports in the case demonstrated that detecting a number reassignment is “either impossible, or at least highly unreliable.” The specific problem, as highlighted by the court, is “the difficulty and unreliability associated with matching telephone numbers to subscribers.”
Based upon this reasoning, the court held that the Defendant did not violate the TCPA because in making the call it was reasonably relying upon the consent of its patient—the prior subscriber of the telephone number at issue.
Sandoe is now the third case in which a court has either applied, or at least recognized the reasonable reliance defense. See Roark v. Credit One Bank, N.A., No. 16-173 (PAM/ECW), 2018 WL 5921652, at *8 (D. Minn. Nov. 13, 2018); AMP Auto., LLC v. B F T, LP, No. 17-5667, 2019 WL 1409769, at *, 2019 U.S. Dist. LEXIS 52793 at *8-*9 (E.D. La. Mar. 28, 2019). The court’s ruling in Sandoe is another step in the right direction, and hopefully signals a trend amongst the lower courts in the application of this common sense approach to reassigned numbers.