• Putative TCPA Class Action Fails - Court Clarifies Scope of "Consent"
  • December 2, 2010 | Author: Peter E. Pederson
  • Law Firm: Hinshaw & Culbertson LLP - Chicago Office
  • Plaintiff placed in her credit report a “fraud alert” message which stated that she was the victim of identity theft and that potential creditors should verify her identity by calling her cell phone number before establishing credit using her personal information. After a third party tried to open a satellite television account with DirecTV using plaintiff’s Social Security number, DirecTV received plaintiff’s fraud alert message and cell phone number from a credit bureau. Plaintiff did not have any relationship with DirecTV. DirecTV’s contractor, iQor, used a predictive dialer to call plaintiff’s cell phone and play a prerecorded message asking her to confirm whether she had opened a DirecTV account. Plaintiff then filed a class action lawsuit, alleging that iQor and DirecTV violated the Telephone Consumer Protection Act (TCPA), 47 U.S.C. § 227(b)(1)(A)(iii), by using a prerecorded message to call her cell phone number, without her consent. Plaintiff sought statutory damages on behalf of herself and the class for each offending call. She also sought an injunction prohibiting defendants from committing further violations of the TCPA.

    The TCPA allows businesses to use a prerecorded message to call to a cell phone as long as the called party has given “prior express consent” to receive such calls. The court entered summary judgment for defendants, finding that plaintiff gave “prior express consent” to be contacted on her cell phone when she instructed potential creditors to verify her identity by calling the number assigned to her cell phone. The court relied on the Federal Communication Commission’s (FCC’s) 1992 implementing regulation under the TCPA, which states that “persons who knowingly release their telephone numbers have in effect given their invitation or permission to be called at the number which they have given, absent instructions to the contrary. [A party] will not violate [the TCPA] by calling a number which was provided as one at which the called party wishes to be reached.”

    This case shows that a called party may give consent under the TCPA by knowingly releasing his or her number to the caller through an intermediary even where there is no direct relationship between the caller and called party. Absent a direct relationship, the caller must still demonstrate that the called party expressly consented to receiving the call in order to avoid liability under the TCPA.