The TCPA has become a landmine for unsuspecting companies as the Federal Communications Commission (FCC) has broadly expanded the Telephone Consumer Protection Act’s (TCPA) reach. The Sixth Circuit in Hill v. Homeward Residential, Inc., No. 14-4168, 2015 WL 4978464 (6th Cir. Aug. 21, 2015), the Eleventh Circuit in Murphy v. DCI Biologicals Orlando, LLC, No. 14-10414, 2015 WL 4940800 (11th Cir. Aug. 20, 2015), and the Northern District of California in Luna v. Shac, LLC, No. 14-CV-00607-HRL, 2015 WL 4941781, at *1 (N.D. Cal. Aug. 19, 2015), rationally sought to limit the onslaught of TCPA liability.
The TCPA prohibits companies from making calls using an automated telephone dialing system (ATDS) to a person’s cellphone without that person’s prior express consent. Two cases sought to clarify what it means to provide “prior express consent,” and one case expanded upon the definition of an ATDS.
The plaintiff in Hill provided his home phone number to a mortgage loan company when he took out a loan in 2003. Plaintiff cancelled his home phone number years later and provided the company his cell phone. After the company called his cell phone approximately 480 times to collect on this debt, Plaintiff sued for statutory damages under the TCPA. Plaintiff argued that he had not provided prior express consent to be called on his cell phone because he had not consented in 2003 to calls on his cell phone. The court disagreed and held that a debtor consents to calls about an existing debt when he gives his number “in connection with” that debt, even if it is after the initial signing of the loan. Although debtors typically provide their telephone number at the time of the loan, it does not always have to be that way; “‘prior express consent’ is obtained if the individual gives a company his number before it calls him.” Finally, the court concluded that a creditor is not required to obtain consent to call a debtor specifically through an autodialer; consent to call is enough.
The Eleventh Circuit in Murphy similarly clarified that a plaintiff had consented to receiving text messages by voluntarily providing his cell phone to a company accepting blood donations. Plaintiff’s complaint alleged that he provided his cell phone number on a New Donor Information Sheet, which he completed before giving blood plasma. The form neither requested a cell phone number specifically nor indicated that providing a cell phone number was a prerequisite to donating blood plasma. Regardless, by providing his cell phone number, Plaintiff expressly consented to be contacted at that number.
Finally, in Luna, the court set out the general definition of an ATDS: “any equipment that has the specified capacity to generate numbers and dial them without human intervention regardless of whether the numbers called are randomly or sequentially generated or come from calling lists.” Accordingly, “the capacity to dial numbers without human intervention is required for TCPA liability.” The court held that the following system was not an ATDS because human intervention was involved in the transmission of the messages: telephone numbers the company texted were input into the web-based platform either by manually typing the numbers or by uploading or cutting and pasting an existing list of phone numbers into the website. An employee drafted and typed the message content and personally clicked “send” on the website in order to transmit the messages to customers, including the plaintiff. Because an ATDS was not used, the company was not liable under the TCPA for sending the messages.
These rulings may seem like common-sense. But given the recent plaintiff-friendly rulings from the FCC and courts, companies should be happy to see that the courts are still willing to place limits on the scope of the TCPA.